There is a myth that you can dismiss a member of staff if they have less than two years of service.
Like all myths, this has some foundation in reality, but actually, if you take a business decision based on this myth, you are likely to end up in an employment tribunal.
The reality
If an employee has less than two years of service, they can’t bring a claim for unfair dismissal (you terminate their employment for a reason which is not fair. See the list below for fair reasons for termination) or constructive dismissal (they resigned, but did so as their situation was untenable).
However, they can bring a claim for wrongful dismissal i.e. you didn’t follow a proper process or pay them what they were owed.
A dismissal is only fair if it is for one of the 4 reasons below
- Capability / Performance
- Conduct / Attitude
- Redundancy
- A statutory restriction i.e. in prison, not got a valid work permit
In addition there is a 5th reason you can lawfully terminate employment, which is for ‘Some Other Substantial Reason’. Extreme care must be used when deciding to terminate for SOSR. It really does need to be a significant and substantial reason and will vary from case to case. In some situations breach of trust will be used, but the incident causing the breach must have a high impact on the business or the relationships involved.
With less than two years of service…
An employee can also claim for discrimination, breach of contract, illegal deduction of wages, health and safety breaches, bullying, harassment etc.
In some cases, the person bringing the claim does not even need to be an employee. A candidate who has applied for a position may bring a claim against you if they feel you have discriminated against them. If you advertise for a ‘junior’ or a ‘college leaver’ to work in your hair salon, this can be seen as ageist and therefore discriminatory. There is nothing in that job which an older person can not do. To restrict applications to 18 – 20 year olds could result in a 60 year old looking for a low level job to bring a claim for age discrimination as you won’t assess them based on their skills and abilities, only on their age.
Why is discrimination always mentioned?
When someone brings a claim in an employment tribunal, if it is possible to do so, they will add a claim for discrimination. The reason for this is that the award for a discrimination claim is uncapped and they don’t need two years of service.
The individual would need to prove that they have been discriminated on the basis of one of the protected characteristics:
- Age
- Sex / Gender
- Race
- Religion / belief
- Maternity status
- Sexual orientation
- Marital / civil partnership status
- Disability
- Gender Reassignment
Ignoring the risk of a discrimination claim and assuming you are safe to dismiss someone as they have less than two years of service could cost you not only your reputation, but your business as well.
If you do decide to dismiss someone regardless of their length of sevice, it is essential that you follow your own company policies AND that those policies meet or exceed ACAS guidelines. Failure to do so could result in a wrongful dismissal claim and / or an uplift in the award of up to 25%. Potentially, an expensive mistake to make.
