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GoodHR employment law and consultancy

Newsletter March 2015
Can an employee be dismissed safely with less than two years' service?

It is a common misconception amongst employers that dismissing an employee who does not have two years’ service will mean that they are "safe" from an unfair dismissal claim in the employment tribunal. This often leads employers to dispense with their usual disciplinary, capability and redundancy procedures when dealing with the dismissal of an employee with a short length of service. Although in many situations dismissing an employee who does not have qualifying service will be low risk, there are a range of exceptions to the rule.

Basic qualifying rule

The basic rule is that employees require two years' service in order to bring an ordinary unfair dismissal claim.  The following are the key exceptions which arise most frequently in practice and should be borne in mind:

Is the dismissal discriminatory?

Dismissals which take place for a discriminatory reason will be actionable irrespective of length of service. An employee may not be able to claim unfair dismissal if they have less than the qualifying service, but they could claim that their dismissal was discriminatory if it was in any way linked to a protected characteristic (eg: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation).

Compensation for a discriminatory dismissal is calculated in a similar way to an unfair dismissal claim in terms of compensation for loss of earnings, but there is no cap on compensation in discrimination cases as there is in ordinary unfair dismissal, and an injury to feelings award is also payable where a finding of discrimination is made.

In light of this, when considering dismissal, employers should consider the reason for dismissal and whether it is linked in any way to a protected characteristic. If there is any concern that the dismissal could be regarded as linked to one of the protected characteristics then the degree of risk involved needs to be assessed.

Is the dismissal for making a whistleblowing complaint?

Where an employee has made a whistleblowing complaint (an allegation in the workplace that there has been a criminal offence, breach of a legal obligation, a miscarriage of justice, danger to the health and safety of any individual, damage to the environment or a deliberate attempt to conceal any of the above) and is dismissed because of it, there is the risk that they will claim the dismissal was linked to the disclosure and they can claim unfair dismissal irrespective of length of service.

Is the dismissal for a health and safety reason?

Where an employee has been designated to carry out activities in connection with preventing or reducing risks to health and safety at work, or where the individual is the workplace health and safety representative, care should be taken if dismissal is being considered. The law recognises that such individuals may come into conflict with their employer by the nature of their appointment and therefore a dismissal relating to the employee carrying out these activities is automatically unfair and no qualifying period is required to bring an unfair dismissal claim in these circumstances.

Has the individual asserted a statutory right?

Where an individual asserts a relevant statutory right (eg: right to statutory holiday or rest breaks, rights conferred under the TUPE laws or asserting that an unlawful deduction from pay has been made), or raises a claim to enforce a relevant statutory right, they are protected against dismissal on that basis. If such a right has been asserted, and dismissal is for that reason, then the dismissal will be unfair irrespective of length of service.

Is the employee a trade union representative?

If an employee is a trade union representative or has taken part in trade union activities, and dismissal is for that reason, then it will be unfair regardless of the individual's length of service. Care should therefore be taken where dismissal of such an individual is being considered.

Does the employer have a contractual disciplinary or redundancy policy?

Some employers' dismissal processes are contractually binding. Therefore, if an employer does not follow their own procedure in dismissing an employee the dismissed employee may have a claim for breach of contract and a claim for damages resulting from the breach of procedure. There is no qualifying service requirement in order to bring a claim of breach of contract. This is one very good reason to have your dismissal procedures contained within a non-contractual staff handbook!

Minimising risk….

Employers often run into difficulty because even if they have a genuine and legitimate reason for dismissal, the assumption that dismissal can take place without any sort of dismissal procedure leads to a lack of evidence as to the true reason for dismissal. The reason for dismissal and the process followed should always be as robust as possible. The more evidence that the employer can present to demonstrate that they had a legitimate reason for dismissal, the more likely they will be in a position to show that the dismissal was for a reason which does not bring the case into one of the exceptions to the two year rule.

It is tempting to fast track dismissal processes where the individual has less than two years' service, and in some situations it is appropriate and legitimate to do so. These exceptions should always be borne in mind, though, and employers should always keep an appropriate paper trail in order to demonstrate that the reason for dismissal was not unlawful.
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