Dismissing an employee is never an easy decision, but it is a reality that many employers will face at some point. When the employee has less than two years’ continuous service, the process of dismissal is often assumed to be simple and without risk. However, this is a misconception that can have damaging consequences for an organisation. A short service dismissal letter, while sometimes (wrongly) treated as a formality, should instead be considered with particular care.
Employers who approach short service dismissals without adequate care may believe they are protected because the employee has an insufficient length of service to bring an unfair dismissal claim. However, there are a number of other claims that an employee can make to an Employment Tribunal from day one. That being so, it is important that decisions are fair and considered. This blog explores what a short service dismissal letter is, the common pitfalls employers encounter, and why professional advice is often invaluable when navigating these situations.
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Short service dismissal letter – what is it?
A short service dismissal letter is the formal written confirmation that an employee’s employment is being terminated before they have accrued two years’ continuous service. This timeframe is significant because two years continuous service is currently needed to bring an unfair dismissal claim. Due to changes in legislation, the length of time needed to bring an unfair dismissal claim will shortly be reduced from two years to six months.
Essentially, a short service dismissal letter should confirm that the employment relationship has ended and set out the reason(s) for that decision. In addition to the reasoning for the decision, the letter should provide certain information such as when the employee’s last day of employment will be, whether the employee is required to work their notice period etc.
The short service dismissal letter acts as a permanent written record of the employer’s reasoning and approach. If an employee brings an Employment Tribunal claim, the dismissal letter will be of particular importance. For this reason, it must be clear, accurate, and sufficiently detailed to explain why the decision to dismiss was necessary. An effective short service dismissal letter may well not only be of value if it became necessary to defend an Employment Tribunal claim, but also positively affect how the dismissal is perceived by the employee because the decision is accepted.
Short service dismissal letter – what are the pitfalls?
As referred to above, one of the most significant pitfalls that employers face is assuming that dismissing short service employees carries little or no legal risk. Unfair dismissal claims currently require two years’ continuous service, but other claims do not. Certain claims can be brought from day one of employment, and a poorly handled dismissal could potentially provide the evidence to support such claims. For more information on claims that can be brought on day one, read our blog, dismissing staff within 2 years
An example of a potential claim that has no length of service requirement is discrimination. For example, if the dismissal is due to a protected characteristic such as age, sex, disability, or race. Similarly, dismissals linked to pregnancy, maternity, whistleblowing, or the exercise of statutory rights can also give rise to claims from day one. The wording of a dismissal letter can be critical in these cases. For example, ambiguity in the dismissal letter could suggest that the dismissal was actually for a reason which was not lawful.
The reasoning provided in the dismissal letter should be consistent. For example, providing performance issues as the reason for dismissal may appear inconsistent in circumstances when no issues with performance had been raised previously.
Short service dismissal letter – why professional advice would be useful
Given the potential risks and complexities involved with dismissals, gaining professional advice can offer considerable value. Specialist advice can ensure that any process is compliant, fair and transparent. In addition, professional advice can help to identify when a dismissal may potentially involve protected characteristics or when, for example, the employee may allege the assertion of a statutory right.
In complex situations, such as those referred to above, a short service dismissal letter may not be the best option. For example, further steps may be appropriate before a decision to dismiss is made. A simple example would be to fully investigate any grievances that have been made. Professional advice can provide clarity on the steps that should be taken, and ensure that action meets legal requirements and is aligned with the needs of the organisation.
In addition to drafting documentation, specialist advice can help to support managers by providing guidance throughout the process. Specialist providers may also offer training on particular topics, which are tailored to the needs of the organisation. Such training can provide the organisation with the confidence and knowledge to tackle complex issues effectively.
A short service dismissal letter may appear a tempting choice. However, a short service dismissal letter is simply one of the options available. In order to know whether or not a short service dismissal letter would be effective, it is necessary to fully appreciate the issues and what action should be taken to mitigate any risks.
Plotkin & Chandler works exclusively in the areas of HR and employment law and supports both employers and employees.
If you are an employer, and you are contemplating a dismissal and would like guidance on how best to proceed, you would like training on a particular topic such as effectively managing a dismissal, you would like an independent investigation to be carried out, or you would like assistance to defend an Employment Tribunal claim, we can help.
If you are a former employee, who has received a short service letter and you would like to discuss bringing an Employment Tribunal claim because, for example, you believe the dismissal was discriminatory, we can help.
We would be delighted to hear from you on 020 3923 8616 or via email on info@plotkinandchandler.com
