Many employers believe an employee with less than two years’ service can simply be dismissed without much risk. That is not the right way to approach it.
In practice, short-service dismissals can often be dealt with relatively simply, but they can also become expensive where the real reason for dismissal is connected to discrimination, whistleblowing, family-related leave, health and safety concerns or another protected right.
Our employment lawyers regularly advise employers on these situations. The key question is not simply how long the employee has worked for you. You need to know why you are dismissing them, whether there are any protected rights in the background and what evidence supports your decision.
In many cases, yes. Employees with less than two years’ continuous service will generally have less protection against ordinary unfair dismissal.
This can give an employer more flexibility where an employee is not performing, is unsuitable for the role, has committed misconduct or simply has not worked out during their probationary period.
However, less than two years’ service does not mean an employee has no employment rights. There are claims that do not require two years’ service, including certain automatically unfair dismissal claims and discrimination claims.
That is why I would never advise an employer to base the decision purely on the employee’s length of service.
Before dismissing, establish the genuine reason for ending the employment and check whether there is anything in the employee’s recent history that makes the decision more sensitive.
Ordinary unfair dismissal protection generally requires an employee to have the necessary period of continuous service. However, there are important exceptions where the normal qualifying period does not apply.
An employee may be able to bring a claim from the beginning of their employment if the dismissal is connected to certain protected statutory rights or an automatically unfair reason.
Discrimination claims also do not depend on the employee having two years’ service.
This means an employer should not simply ask, “Can this employee claim ordinary unfair dismissal?” You should also ask whether there is another type of claim they could bring.
Before dismissing a short-service employee, look at what has happened during their employment and, in particular, what has happened shortly before the proposed dismissal.
You should be more cautious if the decision could be connected to:
The existence of one of these issues does not automatically prevent you from dismissing the employee.
It does mean you should stop and look carefully at the reason for dismissal before making the decision.
For example, if an employee has performed badly for several months and there is clear evidence of those concerns, a recent complaint does not necessarily prevent dismissal. However, you should be satisfied that the performance problem is genuinely the reason for the decision and that you can demonstrate this if challenged.
Potentially, yes. An employee being on probation does not prevent you from dismissing them if things are not working out.
However, probation does not mean the employee has no employment rights.
Check the employment contract first. You need to understand the applicable notice period, whether there is a contractual probation procedure and whether the employee is still within their probationary period.
You should then consider the reason for dismissal in the same way as you would for any other short-service employee.
If the reason is poor performance, conduct, attendance or suitability for the role, make sure you can explain what the problem is and why you have decided employment should end.
If there is a discrimination, disability, pregnancy, whistleblowing or other protected-right issue in the background, take greater care before making the decision.
There are many legitimate reasons why an employer may decide to dismiss an employee with short service.
These can include poor performance, misconduct, capability concerns, problems during probation, business reorganisation or an employee simply not being suitable for the role they were recruited to perform.
The important point is that the reason should be genuine.
For example, if poor performance is the issue, you should ideally be able to explain what standard was expected, where the employee fell short, what feedback or support was given and why you have reached the point where continued employment is no longer appropriate.
For a short-service employee, this does not necessarily require a lengthy performance improvement process lasting several months. A shorter and proportionate process may be perfectly appropriate depending on the circumstances.
What I would avoid is dismissing first and trying to construct the reason afterwards.
A lengthy formal procedure will not be necessary in every short-service dismissal, but some process is usually sensible.
In a straightforward case, this might involve reviewing the concerns, checking the employee’s contract and employment history, meeting with them to explain the problem and allowing them to respond before making the final decision.
That meeting can be useful because the employee may tell you something you did not know.
For example, an attendance problem may be connected to a disability. A performance issue may have arisen because the employee says they have not received the training they were promised. A conduct concern may have a reasonable explanation.
You may still decide to dismiss after hearing what the employee has to say. The difference is that you have made the decision with the relevant information in front of you.
Before making the decision, I would normally want an employer to be able to answer the following questions:
You do not need to turn every short-service dismissal into a major HR exercise. You do need to understand the reason for your decision and check for obvious legal risks before acting.
Problems often arise because the employer assumes the employee’s short service means the reason and process no longer matter.
This is an approach I would avoid.
Even if ordinary unfair dismissal protection is not available, you should still know why you are dismissing the employee.
If a dispute develops later, inconsistent explanations can cause problems. One manager may say the employee was dismissed for performance, another may say conduct, while an email suggests the real issue was something completely different.
Decide on the genuine reason and record it properly.
Timing can make an otherwise straightforward dismissal much more difficult.
For example, suppose an employee complains about harassment on Monday and is dismissed for “poor performance” on Friday.
There may be a genuine and well-documented performance problem. However, you should expect the timing of the dismissal to be questioned.
The same applies where the employee has recently disclosed a pregnancy, raised a grievance, requested reasonable adjustments, raised health and safety concerns or made a whistleblowing disclosure.
A recent complaint does not make an employee immune from dismissal. It does mean you should make sure the evidence genuinely supports the reason you are relying on.
Writing “poor performance” in a dismissal letter does not make it the genuine reason for dismissal.
If nobody raised performance concerns before the decision was made, ask why.
Ideally, there should be something showing what the problem was. That could be previous conversations, emails, supervision notes, missed targets, customer complaints or other evidence relevant to the employee’s role.
The amount of evidence required will depend on the circumstances, but the reason should not appear for the first time in the dismissal letter.
Be particularly careful where performance or attendance concerns may be connected to the employee’s health.
An employee does not need to walk into a meeting and say, “I am disabled under the Equality Act” before you consider whether disability may be relevant.
If you know the employee has a long-term health condition, recurring absence, mental health difficulties or symptoms that may have a substantial and long-term effect on normal day-to-day activities, consider whether further enquiries or reasonable adjustments are needed before dismissing.
This can apply regardless of how long the employee has worked for you.
For a relatively straightforward short-service dismissal, I would normally start by checking the employment contract, probation terms and any relevant policies.
You should then identify the actual reason for dismissal and review whether there is anything involving discrimination, whistleblowing, health and safety, family-related rights or another protected right that requires closer attention.
In many cases, a short meeting with the employee will be sensible. Explain the concerns, allow them to respond and consider what they say before making the final decision.
If you decide to dismiss, confirm the decision in writing and deal properly with notice pay, accrued holiday and any other contractual sums due.
More sensitive cases may require a fuller process. There may also be circumstances where a settlement agreement should be considered, although that will depend on the particular situation.
The process should be proportionate to the circumstances and the level of risk.
Length of service and notice entitlement are separate issues.
Even where an employee does not have sufficient service for an ordinary unfair dismissal claim, they may still be contractually and legally entitled to notice.
Check the employment contract before terminating employment.
Depending on the circumstances, the employee may work their notice, be placed on garden leave where the contract permits it, or receive payment in lieu of notice where there is an appropriate contractual basis.
Gross misconduct is different because it may justify dismissal without notice. However, you should not label conduct as gross misconduct simply to avoid making a notice payment.
Less than two years’ service can reduce the risk of an ordinary unfair dismissal claim, but it does not mean the employer can ignore the reason for dismissal or the employee’s other employment rights.
Before dismissing, identify the genuine reason, check the evidence, look at anything the employee has recently raised or disclosed and make sure there is no obvious discrimination, whistleblowing or other protected-right issue.
Then check the contract, follow a proportionate process and make sure notice, holiday and other sums are dealt with correctly.
For many short-service employees, dismissal can be dealt with relatively quickly. The key is making sure a straightforward dismissal does not become a more difficult dispute because the basic checks were missed.
Neathouse Partners advises employers on short-service dismissals, probation issues, poor performance, misconduct and dismissal risk.
If you are considering dismissing an employee with less than two years’ service, we can review the circumstances, identify the main risks, prepare the dismissal paperwork and support you through the process.