Is it safe, and easy, to dismiss an employee with less than 2 years’ service?

  • Denise Rose
  • Wednesday, December 27th, 2017

Generally, employees need to have worked for an employer for 2 years before they are able to bring a complaint of unfair dismissal but there are certain exceptions to this where employees do not need any minimum period of service to bring a claim. If an employee establishes that their dismissal is for one of these reasons it will be treated as being automatically unfair. In other words, the employer will not have the option of being able to argue that the dismissal is potentially fair.

There are a surprisingly high number of reasons that are treated as automatically unfair in the context of a dismissal.

For example, if your employee announces she is pregnant and you decide to dismiss her because she will be taking a period of maternity leave that will cause disruption to your business, that will be treated as an unfair dismissal and pregnancy discrimination. Similarly, if you dismiss your employee for having made a protected disclosure under the whistleblowing provisions, s/he will be able to claim automatic unfair dismissal even if they have only been employed for a month.

There are other less obvious examples. If you dismiss an employee who refuses to sign an opt out from the restrictions imposed on working for more than 48 hours per week under the Working Time Regulations, or for taking action against you to receive the correct amount of pay under the National Minimum Wage Regulations, these will be treated as automatically unfair dismissals, irrespective of how long they have worked for you.

If you dismiss someone for a reason relating to their age, sexuality, race or religion, because they have a disability or are pregnant (or for any other legally protected reason) they will be able to claim discrimination and do not need to show any minimum period of employment.

If you make a mistake and dismiss an employee for an automatically unfair reason or the dismissal is discriminatory, s/he can, in some cases, receive a higher amount of compensation than is available in ordinary unfair dismissal cases.

It is always better to be safe than sorry which is why any knee-jerk decisions to dismiss purely on the basis of less than 2 years’ service should be carefully considered by an employer before any final decision is made. Ensuring that a dismissal is fair will save great expense down the line should the employee issue a claim for automatically unfair dismissal or discrimination.

The advisors here at DPH Legal are always at the end of the phone to have a quick discussion about any important decisions such as a dismissal so feel free to give us a call.