Most employers are aware that if an employee is dismissed with two or more years’ service, the employee will be able to bring an unfair dismissal claim within the Employment Tribunal. Therefore, it is often assumed that if the qualifying length of service isn’t met there is no risk of a claim arising from the dismissal. But what happens if an employee brings a claim without at least two years’ employment?
Whilst an employee with less than two years’ service cannot claim ordinary unfair dismissal, other types of claims can still be brought regardless of their length of service. Employers should exercise caution before contemplating the dismissal of any employee, giving careful consideration to the reasons and circumstances of the dismissal.
Automatically Unfair Dismissal Claims
There are certain types of dismissals that are automatically unfair regardless of whether the employee has two years’ continuous service. For example, if the employee can show in the Tribunal that they have been dismissed for one of the reasons below, they could argue that their dismissal is automatically unfair:
- taking leave for family reasons – i.e. pregnancy, childbirth, statutory maternity, paternity, adoption, parental leave, shared parental leave of time off for dependants;
- raising health and safety concerns for fellow employees or themselves;
- making a protected disclosure (whistleblowing);
- submitting a flexible working application;
- asserting a statutory right; or
- raising breaches of national minimum wage.
The above list does not cover every example however, the full list of automatically unfair dismissals can be found in the Employment Rights Act 1996.
- Dismissal for a Discriminatory Reason
Irrespective of their length of service, an employee can also bring a discrimination claim if their dismissal was for a discriminatory reason. Therefore, you should consider carefully whether the reason for dismissal is linked in any way to a protected characteristic (i.e. age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation), particularly as there is no cap on the compensation awarded in discrimination claims.
- Rights Contained Within the Contract of Employment
All employees have the rights set out in their employment contract, regardless of their length of service. Therefore, if your disciplinary process forms a term of the employee’s contract – and you do not follow that process when dismissing an employee – the employee may have a claim for breach of contract and be in a position to claim damages arising from that breach. Employees can also bring a claim of wrongful dismissal for breach of contract if, for example, you do not provide the relevant notice period or fail to make other payments owed under the contract.
Follow a Fair Process
Whilst it may be tempting to forego any process whatsoever when dismissing an employee with less than two years’ service, we would advise employers to give serious consideration to following at least some form of fair process – particularly if there are any circumstances that may warrant the employee being able to bring any of the claims listed above.