Please note that the below applies to dismissals on grounds of conduct or capability. For dismissals on other grounds (eg redundancy) please contact your legal/HR advisor.
When an employee has under 2 years’ service, ordinarily they cannot make a claim to an employment tribunal for unfair dismissal. However they may be able to make another claim that does not require qualifying service. This could include claims of discrimination, or automatic unfair dismissal, where they have been dismissed for a specific reason which affords them special protection under the law.
Therefore, an employer’s first consideration when considering terminating the employment of an employee with short service is to check whether they may be able to make a claim that does not require qualifying service.
Equality Act 2010
Complaints about dismissals for alleged reasons of discrimination on a protected ground would be likely to be taken under the Equality Act 2010 and there is no limit on the compensatory award an employee can receive if they are successful. Before considering dismissal, employers should check whether there are any protected characteristics that apply to the employee. The protected characteristics are age, disability, gender reassignment, marriage & civil partnership, pregnancy & maternity, race, religion or belief, sex, and sexual orientation. If an employer believes that their employee could link their dismissal to any of these grounds, they should contact LAW for further advice before proceeding with the dismissal.
Automatic Unfair Dismissal
Some claims which are counted as automatically unfair dismissal do not require a qualifying continuous length of service. Examples of this include discrimination linked to dismissal because of a protected characteristic, dismissal due to whistleblowing, dismissal due to health and safety activities and, dismissal due to exercising a statutory right.
If an employer believes that their employee could link their dismissal to any of the above, they should contact LAW for further advice before proceeding with the dismissal.
Essentially there are 3 options for handling the dismissal of someone with less than 2 years’ service:
- Comply with the ACAS Code of Practice on Discipline and Grievance.
- Follow good practice and give notice of a termination meeting.
- Take the commercial route, and simply advise the employee that they are being dismissed.
This is suitable for dismissals related to conduct or capability and will be advised if there is a significant risk that the employee has grounds to make a tribunal claim. Further information on this process can be found within the Disciplinary section of the website.
This involves going through a process which gives the employee notice of the potential termination of employment and allowing the employee to convey their views before any dismissal decision. This allows the employer the opportunity to establish any potential litigation risks in terminating employment in advance of making a decision.
The process to follow would be:
- Write to the employee requesting that he/she attends a meeting. The employee should be given at least 24 hours’ notice of the meeting taking place and be given the right to be accompanied by a fellow work colleague or trade union official.
- At the meeting tell him/her why termination of their employment is being considered and give them the chance to respond and come up with any suggestions to save their position.
- Adjourn the meeting for a short period to consider what she/he has said. If any concerns come to light during this meeting that may highlight the risk of a tribunal claim, contact LAW for advice.
- If there are no concerns regarding claims, call him/her back in to deliver the decision.
- Terminate their employment with contractual pay in lieu of notice (the employee could be asked to work their notice but most employers choose not to as it can cause problems having an unhappy employee on site) and payment for any outstanding holidays.
- Follow up this decision in writing.
- The employee then has the right of appeal against this decision to another manager who has the level of authority to overturn the original decision.
- It is recommended that there is a minute taker also present at the meeting.
If the employer is confident there are no grounds for discrimination and no other potential claims there is minimal risk in following the 'commercial route'. This involves simply calling them in to a meeting (no notice, no right to be accompanied etc), explaining that their employment is terminated with contractual notice and payment for any outstanding holidays, and they can finish there and then (again, as above there is the option to ask them to work their notice). Ensure that a minute is taken of the meeting.
While there is no legal requirement to provide a reason for the dismissal, this is good practice and can reduce the risk of a claim, and assist in defending one if the need arises. The decision should be confirmed in writing.
Contractual Disciplinary Procedures
It is important to note that the above advice is based on there being no contractual disciplinary procedure. If there is a contractual disciplinary procedure in place, this should be followed to avoid the risk of a wrongful dismissal claim. Contact LAW for further advice if there is a contractual disciplinary procedure.