Dismissing Short Serving Employees

Employees with less than 2 years’ service generally cannot bring a claim for unfair dismissal.

Where an employee has less than 2 years’ service the employer does not need to establish one of the potentially fair reasons for dismissal under S98 of the Employment Right Act 1996.

Employers will need to make sure that the reason for the dismissal is not one of the automatically unfair reasons such as dismissal for reasons connected with pregnancy and maternity or dismissal for making a protected disclosure (whistleblowing).

In nearly all cases the normal qualifying period does not apply if dismissal is for an automatically unfair reason and there is no defence to a claim for unfair dismissal once it has been proven it was for an automatically unfair reason.

To protect themselves from potential claims Employers should give a reason for any dismissal such as poor performance, so that if the employee asserts they have been dismissed for an automatically unfair reason the employer has evidence to the contrary.

Discrimination

Another potential claim which has no minimum qualifying period that you should bear in mind is a claim for unlawful discrimination on the grounds of, age, disability, gender reassignment, marriage/Civil partnership, pregnancy/maternity, race, religion, sex and sexual orientation.

Before dismissal assess the risk of the employee bringing a claim for discrimination, if there are concerns of a potential claim, collate evidence and reasons for the dismissal to substantiate that dismissal was not discriminatory.

Provided the employer is satisfied that there are no automatically unfair or discriminatory reasons for the dismissal, it can simply call a meeting with the short serving employee and advise them that they are being dismissed and then confirm the dismissal and reason in writing.

Other considerations

Failure to follow a contractual disciplinary procedure or performance management procedure could lead to a claim by an employee for breach of contract. Damages for breach will be the loss of salary for the time it would have taken to complete the contractual process, normally between 2-4 weeks.

When dismissing an employee in all cases save for gross misconduct dismissals, employees are entitled to receive notice pay or pay in lieu of notice on termination. Statutory minimum notice period for any employee employed more than one month and less than 2 years is 1 weeks’ notice.

Other contractual claims that could be bought are accrued salary and untaken annual leave to date of termination.

ACAS Code of Practice

Nothing in the ACAS codes states that it does not apply to dismissal of short serving employees but the only sanction for breach of the ACAS code is up to 25% up lift on damages, which can only be applied if there are other claims and is not a standalone claim.

When dismissing an employee who has been employed for less than two years it can be as simple as verbally advising them of their dismissal and then confirming in writing.

Section 97 of Employment Rights Act 1996 treats employment as continuing until the expiry of the statutory minimum notice period of one week. If dismissing an employee who is close to two years’ service without notice their date of termination will be one week later and if that takes them over 2 years’ service they will be able to bring a claim for Unfair Dismissal.

The extra week will not be added in gross misconduct summary dismissal cases but the employer will need to show it was a genuine gross misconduct dismissal, the best way of doing so is by following a fair procedure.

Points to note when dismissing a short serving employee:

1. To avoid spurious claims for automatic unfair dismissal and discrimination provide a reason for the dismissal, such as performance;
2. Confirm all dismissals in writing to the employee following their dismissal;
3. Express all disciplinary procedures as non-contractual;
4. Take care when dismissing employees close to 2 years’ service.

For more information on dismissing short serving employees, please contact ORJ’s specialist employment lawyers on 01785 223440 for a free consultation.