Yes, an employee can be dismissed under two years of service. However, the reasons for dismissal must be fair and lawful under UK employment law. The dismissal should not be discriminatory or in breach of an employment contract. In addition, if the dismissal is linked to the making of a protected disclosure (whistleblowing) this may also give rise to a claim.
Statutory Protection After Two Years of Service
After two years of continuous service, an employee gains statutory protection against unfair dismissal. This means that an employer must have a fair reason for dismissal and follow a fair procedure. If not, the employee may have a claim for unfair dismissal in the Employment Tribunal.
The Five Fair Reasons For Unfair Dismissal
The five fair reasons for dismissal, as outlined by the Employment Rights Act 1996, are:
- Capability or qualifications
- Conduct
- Redundancy
- Statutory restriction
- Some other substantial reason
Unfair Dismissal Under 2 Years Service
While employees generally cannot claim unfair dismissal within their first two years of service, there are exceptions. These include dismissals related to pregnancy, whistleblowing, trade union activities, and asserting statutory rights, among others. These are considered automatically unfair dismissals.
Automatically Unfair Dismissal
Automatically unfair dismissals are those where the reason for dismissal is deemed unfair by law, regardless of the employee’s length of service. This includes dismissals due to pregnancy, maternity leave, paternity leave, adoption leave, being a trade union member, and whistleblowing, among others.
What’s The Difference Between Unfair and Wrongful Dismissal?
Unfair dismissal relates to the reason for dismissal and whether the employer acted reasonably. Wrongful dismissal, on the other hand, relates to breaches of the employment contract during the dismissal process, such as not giving proper contractual or statutory notice.
Difference Between Constructive and Unfair Dismissal
Constructive dismissal occurs when an employee resigns due to their employer’s conduct, which they deem to have breached their employment contract. Unfair dismissal, however, is when an employer terminates an employee’s contract for reasons that are unjust or without following a proper procedure. Constructive dismissal is a type of unfair dismissal and is often more difficult to prove.
Potential Issues of Dismissing An Employee With Under Two Years Service
While it is possible to dismiss an employee with less than two years of service, it carries potential risks. These include claims for discrimination, wrongful dismissal, and breach of contract as well as a claim for whistleblowing. It’s also important to consider the potential impact on team morale and productivity.
Unlawful Discrimination Claims
An employee can bring a claim for unlawful discrimination, regardless of their length of service. This includes discrimination based on age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, or sexual orientation.
Breach of Contract
A breach of contract claim can arise if an employer does not adhere to the terms set out in the employment contract. This could include not giving the correct notice period or not following the agreed procedure for dismissal.
Dismissal Advice For Employers
Employers should always seek legal advice before dismissing an employee. It’s crucial to ensure that the reason for dismissal is fair, the correct procedure is followed, and the decision is not discriminatory. This can help to minimise the risk of legal claims and maintain a positive working environment.
David Philip Harris is a recognised employment solicitor with over 10 years of experience in advising employees and employers on employment law matters. He is a frequent contributor to BBC Radio Berkshire and People Management Magazine. David has represented individual and corporate clients in the employment tribunal as well as the High Court and County Court. David is a member of The Law Society and The Employment Lawyers Association (ELA UK). To contact David, visit the Contact Us page. For media enquiries: info@dphlegal.com.