Dismissing an Employees With less than 2 years service

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Is it safe to dismiss an employee with less than two years of service?

Legally, employees cannot bring an Employment Tribunal claim for unfair or constructive dismissal unless they have been continuously employed for at least 2 years.

A minor point to bear in mind is employees with 103 weeks continuous service can bring a claim for unfair or constructive dismissal as to make either claim their statutory entitlement to 1 week’s notice would be included, pushing them over the threshold for two years service.

Dismissing An Employees Within 2 Years Service

Although dismissals within this period are considered ‘low risk’, employers need to consider whether other issues could enable an employee to bring a claim. We discuss 6 common mistakes employers make when dismissing an employee below.

Resources to help your business

Short Service Dismissal Letter (Template)

6 mistakes employers make when dismissing an employee

  1. 1
    breach of contract Claims
  2. 2
    Discrimination Dismissals
  3. 3
    Making A Protected Disclosure (Whistleblowing)
  4. 4
    Reasons Relating To Health And Safety
  5. 5
    Asserting A Statutory Right
  6. 6
    Being A Trade Union Representative

1) Breach of contract Claims

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 (ACAS Code Of Practice).

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 processes, 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.

2) Discrimination

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. Care should be taken when advertising jobs as an advert seeking a “school leaver” could be seen as discriminating against older candidates.

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 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:

  • Age
  • Disability
  • Gender reassignment
  • Marriage and civil partnership
  • Pregnancy and maternity
  • Race
  • Religion and belief
  • Sex
  • 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.

Be careful when considering whether you should dismiss an employee for issues regarding their capability in their role. It might be the case that their capability is hindered by a disability, giving the employee the basis for a discrimination claim.  If the employee does have a disability, the employer may want to consider any reasonable adjustments or an occupational health assessment before considering dismissal.

If you do not, and they bring a Claim, compensation is uncapped and such claims can be expensive and time-consuming.

Resources to help your business

Free Employment Law & HR Manual

'Other Claims' considered automatically unfair

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 below are present before merely dismissing an employee regardless of their length of service.

3) Making a Protected Disclosure (Whistleblowing)

If an employee is dismissed for making a Protected Disclosure (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.

Other factors may constitute 'Protected Disclosure', such as an employee believing they have been treated poorly and subsequently raising a grievance about the issue; following this up with a dismissal based upon the employee being a ‘bad apple' may lead to the employee being able to make a claim.

4) 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.

5) 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.

6) 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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Is there anything else you should consider?

  • Avoid making quick decisions regarding dismissal;
  • Ensure you have a paper trail of evidence kept about the employee – this will be useful if the employee does make a claim;
  • If an employee raises a grievance during the process of dismissal, it is up to you to make sure your organisation investigates it properly;
  • Be consistent! When dismissing one employee, do your best to make sure that you dismiss any other employees for the same offence. Treating one employee differently during dismissal could amount to unfair treatment.

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.

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About the author

James Rowland

Account Services

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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