Dismissing under one year’s service - The potential pitfalls

But we thought it was always fine to dismiss anyone who has under two years’ service, can’t you?

Well, no, not quite!

We often hear employers expressing surprise that there are still risks associated with this which can lead to successful claims in the Employment Tribunal if not carefully considered.

What are thE risks?

Whilst an employee with less than two years’ service cannot bring a claim against you for ordinary unfair dismissal, there are many other claims they might be able to bring based upon rights in place from day one of their employment, many of which have uncapped potential values too.

These include the following:

• Automatically unfair dismissals (there are well over 50 different types of such claims) such as some dismissals that are discriminatory;
• All discrimination claims under the Equality Act 2010, for example, sex, race, disability, age, sexual orientation, religion or belief etc; and
• Whistleblowing claims – where certain types of wrongdoing have been reported and it is alleged that the employee was treated detrimentally because of disclosing such wrongdoing;
• Wrongful dismissal and breach of contract claims;
• Deductions from wages claims;
• Claims for victimisation; and
• Claims for not having been issued with a written statement of terms (an employment contract).

These types of cases can all be brought by individuals with under two years’ service, some from day one and some even from events in the advertising or interview and selection process.

So, you could find yourself at the receiving end of costly claims from employees who you might have dismissed thinking it to be low risk as they were only with you for a few months!

What should you be thinking about before dismissing?

The main thing is not to assume that the dismissal of someone with under two years of employment is risk-free. As we always say, there is no such thing as a risk-free dismissal!

It is often much lower risk and procedures can be adapted to reflect that, but before going ahead, we advise you always ask yourself the following:

1. Has the employee got anything that could amount to a protected characteristic under the Equality Act?

Do they have a condition that might be a disability? Are they pregnant or been on maternity leave recently? Are they noticeably older (or indeed younger) than their colleagues? Do they practice a faith or have a strong belief system?

If so, then consider all that in your decision and ask yourself: could that employee link the decision to dismiss, or any negative treatment, to any of those things?

Are you thinking of letting someone go as their absence levels are too high? If so, consider whether that might be because they have a disability that leads to higher levels of absence.

Similarly, are their absence levels or performance affected by things like time off for religious holidays or periods of fasting?

Are they struggling to get to grips with new systems because they haven’t got the background IT ability, due to their age, and is this affecting their performance?

Have you realised that you actually don’t need that role anymore as you coped fine without it whilst the employee was on maternity leave?

If there are any such things in the background during your decision-making process, consider them carefully and take advice as action taken could well amount to unlawful discrimination.

2. have they raised any complaints or grievances lately? Or any health and safety or other disclosures that could amount to “protected disclosures”?

If so, then check this all out too before making any decisions as, again, if they can show that you dismissed them, or subjected them to any negative treatment, because of those concerns or disclosures, then you might be facing an expensive claim from a whistleblower – again something someone can do without two years’ employment.

3. Have you fulfilled all contractual and statutory payment obligations?

Such as holiday pay, bonus, notice pay, working time etc.?

What extra steps should you take?

We advise that you always think about the wider picture before moving ahead with any dismissal, including those under two years.

Create a checklist that covers:

1. Exploring whether any of those protected characteristics might apply and, if so, be sure to get evidence in place that demonstrates the actual reason for the decision so that you put in place “clear blue water” between the reason and any potential discrimination allegations. If you think there might be a link, take advice straight away to reduce risk.
2. Check that the employee hasn’t raised any concerns or grievances and, again, take advice if you are concerned about this, to minimise detriment claims.
3. Having documents in place that evidence genuine commercial reasons for decisions is advisable too. For example, if you need to make costs efficiencies, then document that to create an audit trail which can be useful to defend allegations of discrimination or detriment – showing the actual reason at the time; and
4. Make sure that the reasons for the dismissal are communicated to the employee too. Knowing the actual reason, as long as it is non-discriminatory of course, can often help in controlling the narrative and reducing ill feeling which can often lead to claims.

Carry out this analysis before any dismissal, or disciplinary action, even for employees with short length of service and document accordingly and, whilst you cannot prevent claims from being made against you, you will be immediately reducing the risk of them being successful.

If you have any questions on this or any other aspect of employment law, please contact a member of the team on enquiries@bridgeehr.co.uk or call us on 01904 360295.