Dismissing employees with less than two years’ service
You may well be aware that for an employee to make an unfair dismissal claim to the employment tribunal they need to have been continuously employed for two years. It was initially one year but this was extended in April 2012.
For an employer to fairly terminate the employment of a member of staff with more than two years’ service it must have an adequate reason. There are five potential ‘fair’ reasons that an employer can rely on:
- Conduct;
- Capability;
- Redundancy;
- Statutory restriction (e.g. Dismissing an employee because they have lost their driving licence where they need to drive for work); or
- Some other substantial reason (e. dismissing an employee due to a clash of personalities or pressured into dismissing an employee by a customer or client)
Relying on “some other substantial reason” when dismissing an employee with more than two years’ service can be risky so caution is advised.
As well as relying on one of the above five fair reasons an employer must also act reasonably. To demonstrate that it has acted reasonably an employer should undertake some form of investigation and have a meeting with the employee to discuss the issue before a decision is made. Following the decision the employee should then be given the right of appeal.
So, turning back to the original article of dismissing an employee with less than two years’ service, how should an employer deal with them? As they are not able to make an unfair dismissal claim to the Employment Tribunal does it even matter?
The answer is a resounding yes and our advice is to proceed with caution.
Since the extension of the qualifying period we have seen an increase in the number of former employees bringing claims to try and get round the two year rule.
A former employee may seek to argue that their employer’s decision to terminate their employment was an act of discrimination. Due to the serious nature of discrimination there is no need for an employee to have a certain length of service before they can bring such a claim. It doesn’t matter if they have been employed for six months or six years.
Therefore employees can, and they do, claim that their dismissal was an act of discrimination to the employment tribunal. Their employer will then need to defend the claim and explain why the termination of employment was not discriminatory.
For the avoidance of doubt, claims for discrimination can be made on the basis of the following protected characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation.
Another approach that we have seen employees take is where they claim that they whistle blew and that was the reason they were dismissed. When an employee makes this claim they may take this to the employment tribunal without the need to have been continuously employed for two years. Should this happen the employer would need to defend the claim and demonstrate why the reason for terminating the employment was not because of the whistle blowing.
As indicated, we at GA Solicitors have seen an increase in former employees pursuing such claims to seek to get round the two year rule. This has resulted in their employers having to defend the claims, often at significant expense.
In order to defeat such claims and avoid them arising in the first place, we advise employers to give serious consideration to undertaking the same disciplinary/dismissal process as they would take with employees who have been employed for two years or more.
By doing this an employer will have clear evidence to demonstrate the reason why it chose to dismiss the employee. Such evidence will be crucial in defeating any claims brought by the employee for discrimination or whistle blowing.
If your business is considering taking disciplinary action or is thinking of dismissing employees we suggest that you seek professional legal advice before taking action. Our employment solicitors have a wealth of experience in advising and guiding employers through the disciplinary and dismissal process. Please contact either Rhiain Lewis (01752 513532/rhiain.lewis@gasolicitors.com) or Rob Zacal (01752 513549/ robert.zacal@gasolicitors.com).
Rob Zacal, employment solicitor