Can an employer simply dismiss an employee who has been with them for 1 year and 51 weeks, having not acquired 2 years continuous service?
Employees with less than 2 years’ continuous employment do not qualify for the right to claim unfair dismissal and therefore it is usually relatively straight forward to dismiss such employees, provided the reason for dismissal is neither automatically unfair or discriminatory as there is no minimum qualifying period for an employee to claim unfair dismissal on either of these grounds.
Employers should ensure that they have documentary evidence showing the reason for the dismissal of any short serving employee in case this is challenged by the employee and check that any relevant procedure you would otherwise follow, such as a disciplinary procedure, is not contractual (the vast majority are non contractual), if policy contractual and it is ignored, employers risk a breach of contract claim.
If an employer decides to dismiss an employee who is close to the 2 year continuous service either without notice or with pay in lieu of notice period the employee is unable to bring an unfair dismissal claim and cannot claim damages from their employer which would reflect the loss of chance to claim unfair dismissal.
However where an employer dismisses an employee who has been employed for 1 year and 51 weeks without giving due notice or with pay in lieu of notice, their employment is deemed to have continued until the expiry of the statutory minimum notice period, of 1 week and the effective date of termination of employment would be extended by the notice period one week later giving the length of service required to claim unfair dismissal.
As an example, if Burt commenced employment on 15 June 2015 and his employer dismisses him on 10 June 2017 with pay in lieu of notice his effective date of termination for unfair dismissal will be 17 June 2017 as 1 week will be added meaning he can claim unfair dismissal as he has 2 years continuous employment.
Employers should regularly review their employees and especially new employees should be reviewed in advance of them acquiring 2 years’ service as if there are any concerns or issues about an employee as it is far simpler to dismiss an employee within the first 2 years and to ensure the employer avoids the potential complication of dismissing the employee close to the 2 year point.