Is it safe to dismiss an employee with less than two years’ continuous service?
Many employers believe that it is safe to dismiss an employee with less than two years’ continuous service on the basis that they do not have ordinary unfair dismissal rights. It is certainly true that the general rule is that an employee requires two years’ continuous service to bring a claim of ordinary unfair dismissal in the employment tribunal.
The current requirement for employees to have two years’ continuous employment has been in force since 2012 and before this it was 12 months. The period tends to extend or shorten depending on the Government of the day.
However, it is important for employers to realise that are circumstances where employees can bring a claim for automatic unfair dismissal. These are day one rights whereby employees do not require two years’ continuous service to bring claims for automatic unfair dismissal.
An automatic unfair dismissal is also a dismissal that is so inherently unfair that an employee is not in most cases required to prove that they have two years’ continuous service. It is a special protection afforded to such employees in circumstances where their basic employment rights are violated.
There are now a number of potential automatic unfair dismissal reasons and these are set out in the Employment Rights Act 1996. Some of these include the following situations:-
- Dismissing an employee for whistleblowing or making a protected disclosure, for example in an employee alleging that there has been a breach of a legal obligation or that a criminal offense has been committed in the work place.
- Dismissing an employee due to pregnancy, childbirth, maternity or because they wish to exercise their parental leave rights. This could also trigger a sex/pregnancy discrimination claim.
- Whereby employees assert their statutory rights under the National Minimum Wage Regulations or the Working Time Regulations.
- Dismissing an employee because they have raised a health and safety issue. An example is where an employee has reservations about working in the office due to Covid and has care responsibilities for a vulnerable relative. This can include where an employee refuses to return to work because they reasonably believe that they or a member of their household is at risk of serious and imminent danger of contracting Covid.
- Taking leave for family emergencies or to care for dependents.
- A shop worker or betting shop worker refusing Sunday working.
- Dismissing employees for an economic, technical or organisational reason as a result of the sale of the business to another entity under the Transfer of Undertakings ( Protection of Employment ) Regulations 2006.
- Making a request for flexible working.
- Carrying out Jury Service
- Trade union membership or non-membership, or any dismissal linked to participation in Union activities or protected industrial action.
- Dismissing an employee because they perform functions as a pension trustee or an employee representative during a TUPE transfer or a collective redundancy.
- Dismissing an employee due to their part-time or fixed term status.
- In asserting statutory rights to be accompanied at disciplinary or grievance hearings.
- Breaching any exclusivity clause in a zero-hour contract.
- In asserting statutory rights in relation to working tax credits
- A reason relating to pension auto-enrolment.
Unlike ordinary unfair dismissal, procedural unfairness will not be relevant where an employee has been automatically unfairly dismissed as is the position with say a performance or conduct dismissal. An employment tribunal will not be required to determine whether the employer acted reasonably in its decision to dismiss or assess the procedural fairness.
Another important thing to bear in mind is that in the event of an automatic unfair dismissal that is related to whistleblowing or health and safety, then there is no financial cap on the amount of compensation that an employment tribunal can award.
In terms of time limits any employment tribunal claim for automatic unfair dismissal must be filed within three months less one day of the date of the dismissal, and that ACAS Early Conciliation must be undertaken and concluded in the first instance.
Do remember as well that employees do not require two years’ continuous service to bring claims for discrimination under the Equality Act 2010, for example sex, race, disability, age, sexual orientation, religion and belief to name a few protected characteristics.