Can I dismiss an employee with less than 2 years service without following the normal process?
This is a question we get asked a lot, and the short answer is “yes… BUT”.
There are some potential pitfalls and the employee still has some rights and protections. The ‘2 year rule’ is a bit of a red herring, and we advise managers not to rely on the fact that the employee has less than 2 years’ service when dismissing them.
It is true that employees must have at least two years’ service to have the right to claim unfair dismissal. Although employees who have been employed for less time cannot claim unfair dismissal, if the contract of employment states that a process will be followed, you need to ensure that you follow your own process or you are automatically in breach and therefore will have a much harder job defending any employment tribunal claims against you. In this instance, the employee may be able to claim damages for lost wages.
Employees do not need 2 years of service to claim discrimination, or unfair dismissal if the dismissal is for a specified unlawful reason (for example, a dismissal related to pregnancy, health and safety or payment of the national minimum wage).
Employees with less than 2 years of service can also bring a claim for bullying, harassment or whistleblowing. Their dismissal could be deemed as automatically unfair dismissal and / or wrongful dismissal.
Some things are ‘automatically unfair’ if they’re the main reason for dismissing an employee.
These include where the employee is dismissed for:
- making a flexible working request
- being pregnant or on maternity leave
- wanting to take family leave, for example parental, paternity or adoption leave
- being a trade union member or representative
- taking part in legal, official industrial action for 12 weeks or less, for example going on strike
- asking for a legal right, for example to be paid the National Minimum Wage
- doing jury service
- being involved in whistleblowing
- being forced to retire (known as ‘compulsory retirement’)
- taking action, or proposing to take action, over a health and safety issue
An employee does not need 2 years’ service to claim automatically unfair dismissal.
By law, you have to give the employee the right to appeal against any termination decision. The appeal is your opportunity to hear their case and to ensure that you have fully considered everything. This will be the end of the internal procedures and your last opportunity to ‘do the lawful thing’. Following this the employee can bring a claim against the company as well as individuals within the company by submitting a claim to ACAS or by lodging an ET1 form with the employment tribunal.
