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Can I dismiss an employee with less than two years' service without following a fair procedure?

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It is usually only after two years of continuous service that an employee becomes protected against unfair dismissal.  Employers are generally entitled to dismiss an employee with less than two years service without needing to follow a fair procedure or to have any fair reason for their dismissal.   However, it is advised that employers are aware of any legal issues which could arise during the dismissal and that they therefore follow a cautious approach.  Our Employment Law team discuss this topic here, giving advice as to the reasons for dismissal and how to avoid a potential tribunal claim in the future. 

Are employees entitled to a notice period?

As an employer, it is essential for you to be aware of the fact that even if the employee that is being dismissed has less than two years continuous service, the employee is still entitled to the notice period stated in their contract or to the statutory minimum notice period whichever is the longer.

Once an employee has completed 1 month’s service with you, they become entitled to a minimum period of notice and a failure to provide this could result in a wrongful dismissal claim.  It is therefore recommended that you review the employee’s contract of employment before dismissing the employee and that you give the employee their entitled notice period (or payment in lieu of notice if they have a right to this).  If the employee’s contract does not include a notice clause, you must provide the employee with the statutory notice period which is one week’s notice for one month of continuous service or more, and from two years service onwards to one week for every complete year of service up to a maximum of twelve weeks’ notice.

It is only permissible to dismiss an employee without a notice period or payment in lieu of notice if the employee has repudiated their contract.  For example, if there is sufficient evidence that the employee has committed an act of gross misconduct, with the most common justification for dismissal in this way being dishonesty. In Sinclair v Neighbour [1967] the manager of a betting shop borrowed money from the till, leaving an IOU note.  He knew that this was prohibited conduct and his summary dismissal was justified.

What claims could I face if I dismiss an employee?

You need to ensure that you are not putting yourself at risk of a claim for wrongful dismissal.  Wrongful dismissal occurs when the termination of the employee’s employment breaches one or more terms of their contract.

It is important that you are also aware of the risk of a claim for automatic unfair dismissal in situations where there is a special case dismissal reason.   These are situations where the employee is entitled to bring a claim for unfair dismissal without having completed a period of service and, if successful, the compensation payable is not subject to the usual cap.   The automatically unfair reasons for dismissal include the following:

  • pregnancy, including all reasons relating to maternity,
  • acting as an employee representative,
  • family, including parental leave, paternity leave (birth and adoption), adoption leave or time off for dependants,
  • acting as a trade union representative,
  • joining or not joining a trade union,
  • whistleblowing,
  • raising a health and safety concern,
  • being a part-time or fixed-term employee,
  • pay and working hours, including the Working Time Regulations, annual leave and the National Minimum Wage.

You also need to be aware of the risk of the employee bringing a claim for discrimination if the employee has a protected characteristic.  These claims, like the automatically unfair dismissal claims, are not reliant on length of service. Under the Equality Act 2010 there are nine protected characteristics including:

  • age;
  • disability;
  • gender reassignment;
  • marriage and civil partnership;
  • pregnancy and maternity;
  • race;
  • religion or belief;
  • gender; and
  • sexual orientation.

What is the fair procedure when dismissing an employee?

Finally, you may choose to follow a fair procedure when dismissing employees regardless of their length of service in order to protect your own reputation.  You may feel that is part of your ethos and culture to treat employees fairly and to be seen to be doing so.  Other employees will judge you by the way they perceive you treat their colleagues and ensuring that all dismissals arise from a fair reason and are conducted fairly can enhance the relationship that employers have with their remaining staff.

As demonstrated here, dismissing an employee can be a difficult situation, no matter their length of service. There are several potential tribunal claims that could arise, and therefore we would always recommend you seek legal advice before dismissing an employee to reduce the risk of a claim being brought against you.  You can contact us today to discuss your situation by calling 023 8071 7717 or email employment@warnergoodman.co.uk.

To receive regular Employment Law updates from the team regarding recent tribunal cases and legislation updates, you can subscribe to our weekly Employment Law Newsletter by completing our subscription form or emailing us at events@warnergoodman.co.uk

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.