Dismissing staff within 2 years

It is common for employers to consider dismissing staff within two years because they are simply not making the grade, but what should be done? Perhaps the organisation knows that an unfair dismissal claim cannot be brought if the individual has less than two years of continuous service, which could make dismissal seem all the more tempting, but what does that mean in practice?

 Can an employer really dismiss staff within two years,  swiftly, without the need to follow any procedures, and there be no adverse consequences? The answer to this question is both yes and no. Yes, it is right that an unfair dismissal claim cannot be brought with less than two years continuous service. However, it is possible for the individual concerned to bring a claim for automatic unfair dismissal and/or a claim under the Equality Act 2010 for discrimination, harassment etc. This is because there is no length of service requirement in relation to Equality Act claims or claims relating to automatically unfair dismissals

At first glance, this answer may seem contradictory and unhelpful so lets explore some topics that will clarify the position:

Automatically unfair reasons for dismissal

If a person is dismissed for certain reasons the dismissal will automatically be found to be unfair. Automatically unfair reasons for dismissal are laid out in the Employment Rights Act 1996. If you would like to view the reasons in the legislation itself please click the link above. For convenience, the reasons have been outlined below (although it is not an exhaustive list):

• Undertaking jury service or being absent from work because of that duty.

 

• Taking, or seeking to take, leave for family reasons such as pregnancy, childbirth and maternity; maternity leave; adoption leave etc.

 

 

• For having responsibility for health and safety matters, or being a health and safety representative.

 

• Shop and betting workers who refuse to work on a Sunday, or shop workers who refuse to work additional hours on Sunday.

 

• A refusal to comply with an employer’s contravention of the Working Time Regulations 1998, or a refusal to forgo a right conferred on them by the Regulations.

 

 

• For being a trustee of a relevant occupational pension scheme.

 

• For being an employee representative.

 

 

• The making of a protected disclosure (what is commonly known as whistleblowing).

 

• For asserting or trying to assert a statutory right.

 

 

• For action proposed, or taken, to enforce or secure the benefit of The National Minimum Wage.

 

• For action proposed, or taken, to enforce or secure the benefit of Tax Credits.

 

What are the differences between unfair dismissal and automatically unfair dismissal?

 

The differences  are substantial.  As has been pointed out already, automatically unfair dismissal claims can be brought without the period of continuous service that is required for an unfair dismissal claim. In addition, for unfair dismissal claims, an Employment Tribunal would consider the fairness or reasonableness of an employer’s actions. Whereas, where automatically unfair dismissal is alleged, the Tribunal only has to consider whether or not the person was dismissed for a reason such as those referred to above or, if there were more than one reason for the dismissal, was it the principal one. If it is found that the reason, or principal reason, for the dismissal was an automatically unfair reason the claim would succeed and vice versa.

 

Why is there no continuous service requirement for automatically unfair dismissal or Equality Act claims?

 

Because certain behaviour, such as discrimination, or dismissing someone because of whistleblowing, could occur on day one, and therefore protection is available from the outset with regard to pursuing an Employment Tribunal claim.

 

What should employers do to avoid Employment Tribunal claims that can be brought without 2 years continuous service?

 

There is a great deal that can be done, but below are 5 tips:

 

1. Take advice as soon as possible

As said at the outset, some employers may feel that there is no need to seek advice, or be in any way concerned about dismissing staff within 2 years, because it is not open to them to pursue the matter in such circumstances.

As referred to throughout, this is a misconception. There are a substantial number of circumstances when such a view is incorrect, and this misunderstanding is likely to cause errors and missteps which may well be hard to undo.

Whether organisations have an issue which needs to be resolved, or are seeking to introduce preventative steps, timely advice will enable informed decisions to be made which reflect the needs of the organisation.

2. Take issues seriously regardless of the length of service an individual has

Again, if the misconception above has taken hold, employers may feel that there is no need to invest time in investigating issues when the individual has a short period of service. Simply disregarding things on that basis, without considering whether any further action is needed, is likely to be a mistake. These occasions may be challenging to deal with, but they also provide the organisation with an opportunity to show that the matter has been dealt with properly. The action needed will obviously vary in the circumstances, what is important though is that care is taken before deciding on next steps.

3. Take notes and keep records

This may seem obvious, but it is something that is often overlooked. Keeping a note of what was said during meetings or discussions provides a useful insight with regard to decision making, as would emails (so keep them safe). Having the relevant information to hand means it is easy to establish what decisions were made, why, by whom and when. The availability of such information goes some way to demonstrating that the organisation in question operated in a fair and transparent way.

4. Recognise that prevention is better than cure

Matters can easily escalate. Defending an Employment Tribunal claim is costly, time consuming and a draining experience for all concerned. That being so, introducing effective steps to reduce the likelihood of such claims (rather than opting to ignore such things and hope the problem will just go away) will be money well spent.

5. Have effective policies and procedures in place

Organisations often have policies and procedures in place such as how whistleblowing, or grievances, should be dealt with, but are they followed in practice? Are managers familiar with these procedures, and have they received training on how those procedures should be followed? The purpose of policies and procedures is to set out the way that things should be done. Having effective, and well understood, procedures would indicate that an organisation appreciates the seriousness of events such as the bringing of a grievance, or the making of a protected disclosure, and recognises the need to handle such matters properly.

So, when you are considering dismissing a person with less than 2 years service do so with care, and remember that putting your head in the sand is no substitute for advice.

Plotkin & Chandler works exclusively in the areas of HR and employment law. Whether you would like advice on implementing preventative measures, you would like guidance on an issue which may escalate, or you are in need of assistance to defend an Employment Tribunal claim, we would be delighted to hear from you on 020 3923 8616 or via email on info@plotkinandchandler.com