Dismissing an Employees With less than 2 years service
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Can an employee make a claim for unfair dismissal with less than 2 years service?
Employees cannot bring a claim for unfair dismissal unless they have been employed for at least two years. However, when dismissing employees within 2 years, employers need to consider whether other issues could enable an employee to bring a claim despite not having the two years’ service. We discuss these below.
Dismissing Employees Within 24 months - Exceptions to the 2 Year Rule
ACAS Code of Practice
Many employers take the view that as an employee does not have the right to bring a Claim for Unfair Dismissal, there is no requirement to go through the formal disciplinary process.
Legally, there is nothing wrong with this approach. If you take the business decision that you do not wish to go through the formal disciplinary process, you must ensure that it states in the Contract of Employment that the standard disciplinary rules do not apply during the first two years of employment.
If you do not, it could be open to an employee to bring a Claim for breach of contract.
An employee’s right not to be discriminated against is effective from the first day of employment.
It also applies pre-employment. Employers should take care when interviewing prospective employees but more importantly when rejecting their application. If the rejection relates to a ‘protected characteristic’, a prospective employee can bring a Claim against you.
A claim that is related to a ‘protected characteristic’ will be automatically unfair, and an employee can bring that Claim regardless of their length of service.
It is therefore crucial for employers to be aware of what are the protected characteristics are, and to ensure that none are present or a potential issue when dismissing an employee with less than two years’ service.
Protected Characteristics Covered by the Equality Act 2010:
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Religion and belief
- Sexual orientation
When considering dismissing an employee, an employer should first consider whether any of these characteristics are present and whether an employee could allege that their employment has been terminated for one of these reasons.
If you do not, and they bring a Claim, compensation is uncapped and such Claims can be expensive and time-consuming.
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There are also some other Claims that are considered automatically unfair which means that employees can bring these Claims from the start of their employment.
Employers must consider whether any of these issues are present before merely dismissing an employee regardless of their length of service.
Making a Protected Disclosure (Whistleblowing)
If an employee is dismissed for making a Protected Disclosure, that is, whistleblowing, they are protected from being subject to any detriment as a result of this, and from dismissal.
Compensation for such Claims is also uncapped so employers should be careful if an employee has raised an issue before their dismissal that would be considered as whistleblowing, such as:
- Criminal offences;
- Breach of any legal obligations;
- Miscarriages of justice;
- A danger to the health and safety of any individual;
- Damage to the environment;
- The deliberate concealing of information about any of the above.
Reasons Relating to Health and Safety
It is automatically unfair to dismiss an employee for reasons connected with health and safety where by the employee took action about a health and safety issue.
The right to bring a Claim connected to Health and Safety arises from the start of employment.
For example, where an employee has been designated to carry out activities in connection with preventing or reducing risks to health and safety, they are protected from being subject to any detriment or being dismissed as a result of carrying out those duties.
Asserting a Statutory Right
Employees are protected against being subject to a detriment or being dismissed if they assert a statutory right and any such dismissal would be automatically unfair.
There are limited statutory rights that this would apply to, however, such as asserting that the National Minimum Wage is not being paid, rights under the Working Time Regulations 1998 and rights under the Transfer of Undertaking (Protection of Employment) Regulations 2006.
Being a Trade Union Representative
If an employee is a Trade Union Representative or has taken part in any Trade Union Activities, any dismissal connected to that reason will be automatically unfair.
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Employers Need to be cautious
Given that there are so many ways in which an employee can bring a claim in the Employment Tribunal despite not having two years’ service, it is imperative that employers make it clear as to why the employment is being terminated as any confusion could result in a costly tribunal.
Pro Tip: Always consult a specialist Employment Law adviser before taking any dismissal action against an employee.
About the author
James is on the Business Development & Account Management team at Neathouse Partners and regularly posts articles surrounding issues in HR & Employment Law, including case law & legislation updates. If you have a particular issue you would like addressed, feel free to drop James an email, and he will be happy to offer his assistance.
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