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, then there is no risk of a claim arising from the dismissal. However, although an employee with less than two years’ service cannot claim ordinary unfair dismissal, there are other types of claims that they can still bring regardless of their length of service. This means that, as an employer, you must exercise caution before contemplating dismissal and give careful consideration to the reasons and circumstances of the dismissal.
Automatically Unfair Dismissal Claims
There are certain types of dismissal that are automatically unfair regardless of whether the employee has the 2 years’ service required for an ordinary unfair dismissal claim. Some examples of employees who can prove (or is prepared to argue their case in court) that they were dismissed for reasons relating to:
- leave for family reasons – i.e. pregnancy, childbirth, statutory maternity, paternity, adoption, parental leave, shared parental leave of time off for dependants;
- health and safety concerns for fellow employees or themselves;
- making a protected disclosure (whistleblowing)
- shop and betting workers refusing to work Sundays;
- jury service;
- flexible working application;
- working time cases (Working Time Regulations 1998);
- trustees of occupational pension schemes;
- employee representatives;
- asserting a statutory right;
- national minimum wage;
- flexible working application;
- enforcing rights in relation to tax credits.
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 dismissal or redundancy process (for example) is contractually binding and you do not follow that procedure when dismissing an employee, that employee may have a claim for breach of contract and be in a position to claim damages arising from that breach. In addition, employees can also claim wrongful dismissal for breach of contract if you do not provide the relevant notice period or make a payment in lieu of notice.
Whilst it may be tempting to forego any procedure when dismissing an employee with less than two years’ service, we advise you to give serious consideration to following the same (or at least part) procedure as if the employee had been employed with you for two years’ or more, particularly if there are any circumstances that may warrant the employee being able to bring any of the claims listed above.
Following the correct procedures will provide you with appropriate evidence to demonstrate the reason(s) for dismissal and will be crucial in defending any potential future claims brought by the employee.
If you would like further information on dismissing employees or other employment-related matters, please contact Associate Solicitor, Warren Moores, in our Employment Law and HR team on or 0161 475 1225 or email [email protected].