Our team looks at the legal position when dismissing an employee without two years of service, including any implications on notice periods and pay, but most importantly ensuring that the overall dismissal process is fair and lawful.
What does the law say about dismissing an employee with less than 2 years of service?
By law, you can usually dismiss an employee with less than two years of service without the need to demonstrate a fair reason for the dismissal and without the need to go through a fair disciplinary or dismissal procedure. This is because employees gain statutory protection against unfair dismissal after two years of continuous service with the same employer.
In contrast, where an employee has worked for you for two or more years, you would need to follow fair reasons set under the Employment Rights Act 1996 otherwise there are risks of an unfair dismissal claim. Fair reasoning for dismissal include capability, conduct, redundancy, breach of statutory restriction or another substantial reason where the employee has breached their contract of employment.
For employees who have a right to claim unfair dismissal, you would also need to show that you acted reasonably in treating any one of these statutory reasons as sufficient for dismissal.
Dismissing an employee with less than 2 years of service
When looking to dismiss an employee with less than two years’ service, there are certain circumstances in which a dismissal may be classed as being automatically unfair and for that, there is no qualifying period of service. This is because the law protects employees who are dismissed in circumstances where the dismissal violates their basic employment rights.
There are around 60 different grounds upon which an employee can claim automatic unfair dismissal including any reason connected to pregnancy and maternity, for asserting any statutory rights such as the right to annual leave or the national minimum wage, for making a protected disclosure about wrongdoing in the workplace or for raising a health and safety concern.
If an employee is dismissed for a reason related to a protected characteristic, this could amount to both unlawful discrimination and automatically and unfair dismissal. Under the Equality Act 2010 protected characteristics include age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
Dismissal advice for employers
You may feel like the appropriate action is to fast track a dismissal process but it is always best, where possible, to approach with caution to avoid the potential pitfalls and mitigate the risk of legal action being taken against you.
By following a fair procedure, it demonstrates that you are a caring and reputable employer willing to give people the opportunity to improve where there have been capability or conduct issues.
The best practice procedure when dismissing an employee with less than 2 years of service is as follows: invite them in for a formal meeting, advising them that the meeting might result in their dismissal. You should also provide them with a right to be accompanied at the meeting, explaining that the representative will be given an opportunity to respond. Following the meeting, carry out any further investigations where necessary to show that you are acting on their response.
Reconvene at a later date so that you may formally notify the employee of your decision face to face. Where it is not considered appropriate in this way you must issue them with a written warning or other form of disciplinary sanction.
Need further assistance?
Our team of Employment Law Solicitors offer impartial advice and guide employers on how to approach dismissals including those involving short-service employees. To minimise legal implications, speak to our experts today.