How to dismiss short-serving employees

Employees with less than two years’ service cannot generally claim unfair dismissal, so it is relatively straightforward to dismiss. What consideration do you need to have in mind for dismissing a short- serving employee and how should you go about it.

Under the Employment Rights Act 1996, you don’t need to prove one of the five potential fair reasons for dismissing an employee who is been employed for less than two years. Conduct – Capability – Redundancy – Statutory Illegality – Some other Substantial Reason.

However, there were around 30 automatically unfair reasons for dismissal.  This list is intended as a guide, is not exhaustive and may be varied from time to time.

• any union-related reason
• the assertion of a statutory right, for example, the employee asserted their right to receive a written statement of particulars of employment or not to have unlawful deductions made from their wage
• a pregnancy or maternity-related reason
• a health and safety-related reason, for example, where an employee has brought to the attention of their employer a concern over a risk to health and safety, or where they proposed to leave, or left, the workplace and refused to return while danger persisted.
• for a reason connected with the employee’s assertion of their rights under the national minimum wage (NMW) and national living wage (NLW) legislation
• for a reason connected with the employee’s assertion of their rights, or their refusal to forgo a right, under the Working Time Regulations 1998, for example, the right to paid annual leave or the right to refuse to work on average more than 48 hours per week
• reason connected with the refusal of Sunday work by a shop worker or betting worker
• a reason connected with the employee making a whistleblowing protected disclosure under the Public Interest Disclosure Act 1998
• because the employee exercised, their statutory right to be accompanied to a disciplinary or grievance hearing or to another meeting where the statutory right to be accompanied applies.
• because the employee took, or sought to take, parental leave, paternity leave, adoption leave, time off to deal with family emergencies involving a dependent or shared parental leave
• because the employee made, or proposed to make, an application to work flexibly under the statutory right to request flexible working arrangements
• because the employee took, or proposed to take, action with a view to enforcing or securing the benefit of working tax credit
• because the fixed-term employee exercised, or sought to exercise, their rights under the Fixed-term Employees (Prevention of Less Favorable Treatment) Regulations 2002
• as a result of the employee being summoned for, or being absent from work to attend, jury service, in certain circumstances
• because the employee exercised, or sought to exercise, their statutory right to time off to accompany a pregnant woman to an antenatal appointment
• because the employee exercised, or sought to exercise, their statutory right to time off to attend an adoption appointment
• because the zero-hours employee breached an unenforceable exclusivity clause in their zero-hours contract
• a selection for redundancy for a reason which would have been automatically unfair if it had been the reason for dismissal.

In these cases, the employee doesn’t need to have a minimum qualifying period of employment to make a claim. In addition, dismissals which fall within these cases are deemed to be automatically unfair, so you have no defense once employment tribunal accepts that one of these were the reasons for the employee’s dismissal.

Suggestions

Before taking steps to implement the dismissal of a short serving employee, go through the list of the automatically unfair reasons to ensure none apply.

Even where the reason for dismissal isn’t one of the automatically unfair reasons, if you                     have concerns that the employee might still assert one, ensure you obtain sufficient evidence to be able to demonstrate the real reason for dismissal such as, employees conduct, poor performance, etc.

Discrimination

The other key potential claims to be aware of is unlawful discrimination, as again there was no minimum required qualifying period of employment needed to bring a claim. There are nine types of unlawful discrimination;

Age – Disability – Gender Reassignment – Marriage/Civil Partnership – Pregnancy/Maternity – Race – Religion or belief – Sex – Sexual Orientation.

Be aware

As well as the risk of a claim for direct or indirect discrimination, harassment and victimisation, you can also unlawfully discriminate against a disabled employee by failing to comply with your duty to make reasonable adjustments or by treating them unfavourably because of something arising in consequence of their disability.

Contractual procedures

If you have contractual policies and procedures in place which require you to follow a disciplinary performance management of other procedurals prior to dismissal, you will need to do so.  If you don’t, the employee can claim breach-of-contract damages equivalent to their loss salary for the time which it would take for you to complete the procedure.  The compensation awarded for this type of claim is normally only around 3 to 4 weeks’ pay.

Other than for offences of gross misconduct, an employee is always entitled to receive the notice period, or pay in lieu of notice, if being dismissed. Where the employee has been employed for more than one month and less than two years, the statutory minimum is one week, but their Employment Contract may provide for longer notice.

Where they have been employed for less than a month, you must give reasonable notice; this may be less than one week, but it does not mean no notice period. You will also need to pay accrued salary up to the date of dismissal and pay in lieu of any accrued, but not taken annual leave, even in gross misconduct dismissal cases.

So, when dismissing an employee who was been employed for less than two years, it can be as easy as verbally advising them of their dismissal and then confirming that in writing. You’re not obliged to give a short serving employee an opportunity to appeal against the dismissal unless you promised this as part of the contractual procedure. If you do allow the employee to appeal and they exercise this right, set up an appeal meeting and then, after it’s taken place, confirm the outcome.

The two-year point.

If you dismiss an employee without notice even when you’ve paid them in lieu of notice, for the purpose of establishing whether they have the two-year employment required to claim unfair dismissal, Employment Rights Act 1996 operates to treat their employment as continuous until the expiry of the statutory minimum notice period of one week.

This means that if you dismiss an employee at the one-year and 51 week point without notice, their effective date of termination for these purposes will be one week later, so they will be able to bring an unfair dismissal claim.

Example. John starts work on 1 May 2016 and he is dismissed on 26 April 2018 with one week’s pay in lieu of notice.  His termination date for the purpose of assessing whether he has the two years qualifying period of employment needed to claim unfair dismissal will be 3 May 2018, as one week is added on. He can claim unfair dismissal.