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Short timers – Surely okay to dismiss?

16 Mar 2017

Employers often dismiss ‘problem’ employees with less than two years’ service without referring to their own procedures or the relevant ACAS Code of Practice. However, employers should be aware that it may be possible for such employees to pursue Tribunal claims despite their lack of service.

Although employees with less than two years’ service cannot usually pursue unfair dismissal claims, there are exceptions. These exceptions to the ‘two year rule’ include when an employee is dismissed for:

  • whistle blowing;
  • raising health and safety concerns;
  • becoming pregnant;
  • seeking to rely on certain rights e.g. the right to the minimum wage;
  • joining a trade union or participating in trade union activities; and
  • exercising the right to be accompanied at a disciplinary or grievance hearing.

This list is not exhaustive. Not only would an employee not need two years’ service in order to bring an unfair dismissal claim in these circumstances, the dismissal would also be ‘automatically’ unfair and in some cases, there is no limit on the amount of compensation that can be awarded.

It is, therefore, essential that employers take advice before dismissing, regardless of an employee’s length of service.

Employers should also be aware that employees do not need two years’ service in order to pursue discrimination claims. If an employee, therefore, has characteristics which set them apart from the majority of the workforce – for example, if the employee is the only female in the workforce, homosexual, or of a certain age or race – then employers need to take great care before dismissing. A similar scenario exists when dealing with employees with health problems, as they may be protected by disability discrimination legislation. An Employment Tribunal may infer that an employee has been unlawfully discriminated against and again, the amount of compensation awarded can be unlimited. To avoid this, an employer would need to prove an alternative and non-discriminatory explanation for the dismissal – for example, the employee was dismissed because he or she had committed gross misconduct.

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What should employers do?

  • Take legal advice to discuss the facts and circumstances and whether any exceptions to the ‘two year rule’ may apply.
  • Follow fair and transparent disciplinary and dismissal procedures with all of their employees – regardless of their length of service. Indeed employers may be contractually required to follow their own procedures with all of their employees.
  • Ensure their disciplinary and dismissal procedures comply with the ACAS Code of Practice on Disciplinaries and Grievances and that equal opportunity and whistle blowing policies are up to date.
  • Treat all employees consistently.
  • Avoid being complacent – employees are increasingly bringing claims which don’t require two years’ service as a way around the ‘two year rule’.

Other points for employers to remember:

  • When calculating if an employee has two years’ service, employers must take account of the minimum two week statutory notice period. Therefore, any employee can pursue an unfair dismissal claim once he or she obtains 103 weeks service.
  • Employees are entitled to notice, or to be paid in lieu of working their notice period, unless guilty of gross misconduct.
  • Employees must be paid their holidays which have accrued but are untaken at the time of their dismissal.

At Hay & Kilner, our Employment team provide expert legal advice and assistance throughout an unfair dismissal claim.

For further information, please contact a member of our Employment team.