We frequently hear employers stating, confidently, that you can dismiss anyone with under two years’ service.
This stems from the requirement for an employee to have over two years’ continuous service in order to bring an unfair dismissal claim.
However, it often overlooks other claims employees who don’t have two years’ service can bring such as automatic unfair dismissal, discrimination, whistleblowing and more.
Here are some key points and pitfalls to remember when dismissing someone with less than two years’ service.
- Check ALL the start dates under ANY status!
Service as a ‘worker’ or ‘consultant’ or service within a ‘group’ structure can all potentially count. Also, what are perceived as breaks in employment may not be legally valid – do your research in detail.
- Remember statutory notice can be used to extend service
If the employee is close to two years’ service, in some cases the statutory notice period can be used to allow the employee to reach two years’ service. Again, check with us first.
- Other claims
There are claims that exist from day one. Among others these include: -
. discrimination claims under the Equality Act 2010;
. claims for protected disclosures under the Employment Rights Act;
. breach of contract claims;
. claims for asserting a statutory right.
Make sure you check for these issues first.
Where the basis for dismissal is linked to these claims, the dismissal could well be automatically unfair with uncapped compensation and be brought without two years’ service.
- Check your contractual obligations and policies
Frequently, employers come unstuck because they fail to check and adhere to the individual’s contractual rights before dismissing them.
Often what occurs is that they have a dated contract which might include full details of the disciplinary procedure which will be followed in the event of wanting to dismiss someone. However, as the law has evolved, so have the processes, but sometimes the contracts remain out of date and unfit.
Always check the contract to see what your obligations are – or better still, review your contracts regularly to ensure they meet the latest legislation and best practice to suit your business.
- Conduct an investigation
There are assumptions you don’t have to follow disciplinary or performance procedures for anyone with under two years’ service and whilst technically correct for a “standard” dismissal for reasons of conduct the ACAS Code of Practice for Discipline and Grievances can still apply and may still be worthwhile conducting.
Firstly, any proper investigation may uncover other facts that could need further consideration. For example, if you have an employee who is always late and you dismiss them without seeking an explanation, you may receive a claim for discrimination arising from a disability if, for example, the person had changed medications and that was making them drowsy on a morning hence their lateness.
That is a fairly simplistic explanation, but the point remains - you need all the information to make an informed decision and understand the risks.
- Is the employee genuinely aware?
It is never easy choosing to dismiss someone. I have never met a manager who relishes and enjoys it! However, in my years of HR and Employment Law, I tend to find that, if employees generally know that certain behaviours or conduct could lead to dismissal, then there is often less likelihood of claims arising from those dismissals on the basis that the employee knew this outcome was a possibility. This ultimately is the whole purpose of a disciplinary process with staged sanctions other than in cases of gross misconduct.
Therefore, using repeated lateness as an example again, unless (as a minimum) a manager has sat down with the employee and explicitly said “if you continue to be late, we will be looking to end your contract”, then how can the employee reasonably know that this is the consequence? To be very clear, this is different to saying “please don’t be late again” and it goes a step further to be very explicit as to the consequences if they are.
As noted, gross misconduct is different. It is often unexpected and so would be an exception to this rule. But, gross misconduct is not persistent lateness that has not properly been addressed!
- Perception matters
Why the above point matters is often more about staff who remain in your business rather than the person you sacked.
Imagine that you have started work at this great company, you are really excited to work there and it is a great team. Then one day a colleague is sacked because they have had a lot of time off sick recently and you are messaging them outside of work and find out they had no warning and were just marched in and sacked one day.
What do you think that does to the trust and engagement of your staff members left behind?