Dismissal With Less Than 2 Years’ Service


Dismissal With Less Than 2 Years’ Service


In April 2012 the length of service required for employees to claim unfair dismissal was increased to two years. Many business owners clapped their hands as this would now make it easier to dismiss someone…but does it.

We have several calls a week from employers asking how they can dismiss someone with less than two years’ service.

The first point to consider when dismissing employees is whether they are covered by any of the 9 protected characteristics, age, sex, sexual orientation, religious belief, maternity or pregnancy, gender reassignment, civil partnerships, race & disability. If they are, and let’s face it we are all male or female so everyone is covered by sex, then you may need to approach the dismissal in a different way to ensure you are protecting your business from any potential discrimination claims.

The second point to consider is are you dismissing the employee for any of the following:

  • Bringing proceedings against the employer for breaking certain statutory employment rights
  • Refusing to forego a right under the Working Time Regulations
  • Seeking to enforce rights under the National Minimum Wage Act
  • Making a protected disclosure under the whistle blowing legislation
  • Seeking to exercise the right to be accompanied at a grievance or disciplinary hearing
  • Health & Safety
  • If so then the dismissal could be considered “automatically unfair” in which case the employee just has to show that the dismissal was for one of those reasons and does not require 2 years’ service.

Have you made the employee aware of the issues or their performance? If you have and nothing has changed and you are confident that none of the above apply then I would recommend following best practice and inviting the employee to a meeting. Explain that you have discussed with them the issues and unfortunately nothing has changed and therefore you will have to dismiss them. You will need to give them their contractual notice and any holiday pay that is due. Give them the statutory right to be accompanied by a trade union representative or work colleague and also give them the right to appeal.

You can just invite them in and dismiss them but you may want to consider what this may do to your reputation as a business. It could very soon get around that you ‘dismiss’ people unfairly. I always think how I would like to be treated. Treat people fairly and reasonably. Would you like to be called into a meeting and told you were ‘sacked’.

Also by following best practice you are protecting your business if at a later stage the employee decided to bring a claim for discrimination that you were unaware of.


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