Navigating employment law can be complex, especially when it comes to dismissing employees with less than 2 years’ service. While employers may assume they have free reign to terminate these contracts, the reality is far more nuanced. Understanding the legal landscape is crucial to avoid potential pitfalls and legal disputes. So what exactly are the risks associated with this type of dismissal – and how can employers mitigate them?
Statutory Protections and Fair Reasons for Dismissal
Generally, employees obtain statutory protection against unfair dismissal after accruing 2 years’ continuous service with the same employer. Under the Employment Rights Act 1996, employers would need to give the employee one of five fair reasons to dismiss, and demonstrate they had acted reasonably in reaching their decision. The five fair statutory reasons to dismiss include capability, conduct, redundancy, breach of a statutory restriction, and some other substantial reason to dismiss the employee.
Dismissing Employees with Less Than 2 Years’ Service
When employees have less than 2 years of service, an employer can lawfully end the contract where there are concerns about the employee’s performance or conduct. Employers are under no obligation to investigate or give reason for a dismissal. However, it would be best practice for employers to provide a reason and follow a fair procedure to avoid potential legal action.
Wrongful and Unfair Dismissal Claims
Employees with less than 2 years’ service can still bring a claim for wrongful dismissal based on a breach of contract by the employer. This can occur if the employer dismisses the worker without following a contractual disciplinary procedure or dismissed them without notice, or pay in lieu of notice. It’s crucial to note, employees are entitled to all contractual and statutory notice periods.
Automatic Reasons for Unfair Dismissal
An employee with less than 2 years’ service can raise a claim against the employer if the reason for the dismissal is considered automatically unfair - or based on discrimination. Automatically unfair reasons for dismissal include:
- TUPE transfers where the reason is not an economic, technical, or organisational reason involving changes in the workforce.
- Trade union membership or activities.
- Asserting the right to be paid the national minimum wage (NMW).
- Refusing to give up a right under the Working Times Regulations such as work breaks.
- Enforcing family-related grounds, such as pregnancy, maternity leave, paternity leave, adoption leave, and shared parental leave.
Dismissal Claims Involving Discrimination
Employees could also claim that they have been dismissed due to discrimination for a protected characteristic. These are defined within the Equality Act 2010 to include race, sex, disability, age, religion or belief, pregnancy and maternity, marriage and civil partnership, sexual orientation, and gender reassignment. Discrimination claims should be carefully considered in short service dismissals, as the damages awarded by the Employment Tribunal (ET) can be unlimited when the claim is successful.
Employers should assess each dismissal claim on its own merit and obtain legal advice to ensure they follow the necessary fair procedures to end the employee’s contract. Additionally, employers should ensure their contracts and handbooks are updates. Quest can help you update your HR documents and policies.
If you require further assistance with this, please do not hesitate to contact the HR & Legal Advice Line Service for FREE on 01455 852 028.
