A recent WRC ruling where a worker lost an unfair dismissal claim over misconduct outside the workplace highlights the procedural complexity Irish employers face when dealing with out-of-work conduct, criminal convictions, and unexplained absences Read more
Misconduct at work is a concept most Irish employers think they understand. An employee does something wrong, you follow a process, and the outcome is clear. But what happens when the misconduct occurs entirely outside the workplace? A recent BreakingNews.ie report highlighted a case where a worker lost an unfair dismissal claim at the WRC after failing to tell their employer about a prison sentence. The ruling shines a light on a thorny area of employment law that catches employers off guard far more often than it should.
Yes, but only where the out-of-work conduct has a direct, demonstrable impact on the employment relationship or the employer’s business. The WRC expects employers to show that the behaviour undermined trust, posed a reputational risk, or made continued employment untenable. Fair procedures must still be followed in full, regardless of how serious the misconduct appears.
In this case, an employee received a prison sentence and did not inform their employer. The employer only became aware when the worker failed to attend work. The employee subsequently brought an unfair dismissal claim to the Workplace Relations Commission. The WRC found in favour of the employer, ruling that the worker’s failure to communicate their absence and its cause was sufficient to justify the dismissal.
On the surface, this looks straightforward. An employee disappears, refuses to explain why, and the employer lets them go. But the reason this ruling matters is what it tells us about employer obligations and the thin line between a fair and unfair dismissal, even in seemingly obvious situations.
A common assumption among employers is that a criminal conviction or other serious out-of-work behaviour gives them an automatic right to terminate. It does not. The Unfair Dismissals Acts 1977-2015 protect employees from dismissal unless the employer can demonstrate fair grounds and fair procedures. Criminal conduct outside of work only becomes relevant to the employment relationship when there is a clear connection to the job.
That connection could be reputational damage to the business, a breakdown of trust between employer and employee, or an inability to fulfil the role. Establishing that connection requires documentation, a proper investigation, and a disciplinary hearing. Skip any one of those steps, and even a case that seems like a certain win at the WRC can fall apart.
This is where many employers stumble. In our experience advising clients through disciplinary and grievance processes, the instinct is to act quickly and decisively. But acting quickly without procedure is precisely what leads to unfair dismissal findings.
The WRC ruling highlights an area that rarely appears in employee handbooks: what happens when an employee simply vanishes without explanation. Most contracts of employment contain clauses about notifying the employer of absences, typically within a set timeframe. Fewer contracts address what happens when an employee is physically unable to make contact, or when the reason for absence involves the criminal justice system.
Here is the operational reality that trips employers up. You have an employee who does not show up for work. Days pass with no contact. You suspect something is seriously wrong. Do you treat this as a no-show and begin disciplinary proceedings? Do you wait? How long? At what point does the absence become abandonment of employment versus an unexplained leave?
There is no single correct answer, and the WRC assesses each case on its own facts. What the adjudicator will look for is evidence that the employer made reasonable attempts to contact the employee, allowed a reasonable period for response, documented each step, and then followed a fair disciplinary process before making any decision. Our team at Purpletree handles this exact sequence for employers regularly through our HR risk mitigation service, and the number of moving parts surprises most business owners.
The WRC has consistently held that the process matters as much as the substance. An employer might be entirely justified in their decision to dismiss, yet still lose the case because of procedural failures. Here is what we see going wrong most often.
No investigation before the decision. Summary dismissal does not mean instant dismissal. Even in gross misconduct cases, the employer must investigate the facts before reaching a conclusion. A situation we see frequently is an employer who learns about a criminal conviction and terminates the employee the same day. The WRC will almost always find that unfair, regardless of the conviction itself.
Failing to hold a disciplinary hearing. The employee must be given an opportunity to state their case. This is a requirement rooted in natural justice and reinforced by the WRC Code of Practice on Grievance and Disciplinary Procedures. Skipping this step is the single most common reason employers lose unfair dismissal claims. It does not matter how clear-cut the misconduct seems.
No written records of the process. If there is no paper trail, the WRC has nothing to assess. Verbal conversations, informal warnings, and unrecorded meetings carry almost no weight in an adjudication. When we guide clients through a misconduct process, documentation is the backbone of every step.
Treating all misconduct as gross misconduct. This is a subtle but damaging error. Gross misconduct and ordinary misconduct require different responses. Applying summary dismissal to behaviour that the WRC considers ordinary misconduct can turn a defensible position into a costly award against the employer.
The prison sentence case underlines a principle the WRC applies repeatedly: dismissal must be grounded in a genuine breakdown of the trust and confidence that underpins the employment relationship. The employee’s failure to notify the employer of their imprisonment was not just an absence issue. It represented a fundamental failure to maintain the employment relationship in good faith.
For employers, the lesson is that out-of-work misconduct must be assessed through this lens. Ask whether the conduct, or the employee’s response to it, genuinely damages the working relationship or the business. If the answer is yes, you have a basis to act. If the answer is uncertain, you need to investigate further before making a decision.
Applying this test correctly requires judgment, documentation, and a structured process. It is one of the areas where having specialist employment advice on hand makes a measurable difference. The cost of getting it wrong at the WRC can range from a few weeks’ pay to two years’ remuneration under the Unfair Dismissals Acts.
A well-drafted contract of employment is your first line of defence. Most standard contracts include basic absence notification clauses, but many fall short when it comes to out-of-work conduct. Your contracts and employee handbook should clearly set out what the business considers misconduct and gross misconduct, notification obligations during any period of absence, the employer’s right to investigate conduct outside work that affects the business, and the disciplinary process that will apply.
These clauses do not guarantee a successful outcome at the WRC. But they establish the framework your business will rely on if a situation like this one arises. Without them, you are starting from a weaker position.
Reviewing and updating these documents is something our clients do annually through our HR audit service. Policies that were appropriate three years ago may not reflect current WRC expectations or recent legislative developments.
Misconduct cases, particularly those involving out-of-work behaviour, criminal matters, or prolonged unexplained absences, are among the most complex situations an employer can face. The stakes are high, the timelines are tight, and every step must be documented.
Our team manages this process end-to-end for employers across Ireland. From drafting the initial investigation terms of reference through to representing clients at WRC hearings, we handle the operational burden so that business owners can focus on running their business. That includes coordinating investigation meetings, preparing correspondence, advising on proportionate sanctions, and ensuring every procedural step is completed and recorded.
If you are dealing with a misconduct situation right now, or if you want to make sure your contracts and policies would hold up under WRC scrutiny, get in touch with our team. We work with employers in construction, manufacturing, hospitality, and retail who need practical, responsive HR support when it matters most.
An employer can potentially dismiss an employee for a criminal conviction, but only if the conviction has a direct impact on the employment relationship, the employer’s business, or the employee’s ability to perform their role. A fair investigation and disciplinary process must still be followed. Dismissing without procedure, even for a serious offence, risks an unfair dismissal finding at the WRC.
Gross misconduct is behaviour serious enough to fundamentally undermine the trust between employer and employee, potentially justifying summary dismissal without notice. Examples include theft, fraud, or serious safety breaches. Ordinary misconduct covers less severe issues such as persistent lateness or minor policy breaches, and would typically follow a progressive disciplinary process of warnings before any dismissal could be considered fair.
There is no fixed statutory timeframe. The WRC expects employers to make multiple reasonable attempts to contact the employee over a reasonable period, document those attempts, and then follow a fair disciplinary process. Jumping straight to termination after a few days without contact is risky. Professional HR support can help you manage the timeline and documentation correctly.
There is no general statutory obligation requiring employees to disclose criminal charges. However, the contract of employment or company handbook may include a specific obligation to disclose matters that could affect the employment relationship. Where no such clause exists, the employer’s ability to act is more limited. This is one reason having robust, up-to-date contracts is so important.
This article is for general informational purposes only and does not constitute legal advice. Employment law is complex and fact-specific. For advice on your specific situation, contact the Purpletree HR team directly.
Our team of HR specialists advises Irish employers on exactly these issues every day. Get in touch for a confidential conversation.
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