was it one of the five fair reasons laid down in the legislation (conduct, capability, redundancy, illegality or some other substantial reason) and was this really why the employer dismissed in this case? This involves an assessment of whether the employer acted reasonably, including whether or not it followed a fair procedure when carrying out the dismissal. Our employment law fact card is full of useful information for employers. In the case … Although two years’ continuous employment is generally needed to be able to bring an unfair dismissal claim, if the dismissal is for one of what are called “automatically unfair… Tuesday 17th February 2015. My … If an employee is dismissed without notice, or with less than a week's notice, their date of termination for unfair dismissal purposes should be calculated by adding the statutory week. Employers are aware of this deadline and will often work to terminate an employment contact before the two year anniversary in order to reduce their litigation risk. pregnancy, childbirth or statutory parental leave rights, whistleblowing i.e. This means that an employee who starts employment on 1 September 2013 will reach two years’ continuous employment on 31 August 2015. Compensation for a discriminatory dismissal is calculated in a similar way to an unfair dismissal claim in terms of compensation for loss of earnings except there is no cap on compensation in discrimination cases and an injury to feelings award is also payable where a finding of discrimination is made. Many employers are aware of this. However, the cap applies to all other types of automatic unfair dismissal claim. Exceptions to the two-year … This will allow the level of risk to be assessed and steps to be taken to ensure that, if an employee were to make a claim, you will be in the best position possible to defend the claim. Even where an employer can show it had potentially fair reasoning for the dismissal from work, a tribunal will then go on to consider if dismissing the employee was a fair action or not. If you possess a genuine unfair dismissal case and have been employed by your employer for more than 2 years then you may be able to claim … This means that close scrutiny should be given to the reason for, and circumstances of, dismissal. By providing your details and interests you agree that you wish to receive marketing communications from us in line with your preferences stated here. Depending on the circumstances this may amount to a protected disclosure and there is a risk of a claim. It is tempting to fast track dismissal processes where the individual has less than two years' service, and in some situations it is appropriate and legitimate to do so. The list of potential automatic unfair dismissal reasons is long and complex. Given this complex approach to deciding ordinary cases, an employee may find themselves having to produce a lot of evidence and presenting a lot of different arguments to prove their case. These considerations will not apply in automatic unfair dismissal cases. Therefore they cannot bring a claim in the Employment Tribunal for unfair dismissal. The following questions, answers and case studies will be of interest to employers and employees under … If they do not, an employee could make a claim for unfair dismissal… JavaScript is disabled in your web browser. Dismissals which take place for a discriminatory reason will be actionable irrespective of length of service. It is automatically unfair to dismiss someone for a reason connected to: Where one of these reasons applies and automatic unfair dismissal is established, procedural unfairness (how disciplinaries were conducted etc.) 126 months. Although it’s referred to as a “dismissal” in law, it is in practical terms a resignation. If employers do have contractual dismissal processes then it is worthwhile considering making it non-contractual or adding a section to the effect that the rules will not apply during the first two years of employment in order to avoid this risk. However, when it comes to claims for automatic unfair dismissal, all an individual needs to prove is that the cause for their dismissal from work was one of the automatically unfair reasons. Importantly there are various other types of claim which may be brought without any qualifying period. What unfair dismissal claims don’t need 2 years’ service? In 2012, the … 22 March 2017 at 10:12PM edited 30 November -1 at 12:00AM in Employment, Jobseeking & Training. These include discrimination, deduction from wages and equal pay and should not be overlooked. Morton Fraser LLP is authorised and regulated by the Financial Conduct Authority. Protection was granted to companies against claims of unfair dismissal from employees, initially for one year and then for two years. Wrongful Dismissal Under 2 years. In addition, if such a reason for the dismissal can be shown then it will automatically be ruled that the employee was dismissed unfairly; there is no need to show that the employer acted unreasonably or failed to follow a fair procedure. Marketing communications will normally be sent by email and may occasionally be sent by post. A dismissal may be automatically unfair dismissal where, for example, the reason relates to raising whistleblowing or … There is no qualifying service requirement in order to bring a claim of breach of contract. However, you may be able to show that the reason you had so much time off sick was that you have a … Select if you would like to receive our expert knowledge through our monthly newsletter related to your enquiry. Furthermore, in normal unfair dismissal cases, the Tribunal needs to consider if the motive was fair, and then go on to consider whether, in all the circumstances, the action was fair. Your personal data will be used in accordance with our privacy policy. If the employee started their job prior to 6 April 2012 then only one years’ of continuous service is needed. If an employee is a trade union representative or has taken part in trade union activities, and dismissal is for that reason, then it will be unfair regardless of the individual's length of service. Employers should always keep an appropriate paper trail in order to demonstrate that the reason for dismissal was not unlawful. It is therefore true that an employee can’t take a claim for … In light of this when considering dismissal employers should consider whether the reason for dismissal is linked in any way to a protected characteristic. If the employer dismiss them on 31 August, the employee … The content of this webpage is for information only and is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. A protected disclosure is a disclosure of information made by an employee which that individual reasonably believes shows that one or more of the 6 types of malpractice set out below has taken place, or is likely to take place (commonly known as a whistleblowing complaint): This situation sometimes arises where an employee has raised a grievance alleging that they have been mistreated by their employer in some way, and they are subsequently dismissed for being a "troublemaker". The protected characteristics are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. These include (but are not limited to) asserting rights under the Working Time Regulations (such as the right to statutory holiday or rest breaks), rights conferred under the Transfer of Undertaking (Protection of Employment) Regulations 2006 and asserting that an unlawful deduction from pay has been made. This enforced time period significantly reduces the number of people able to bring a claim of unfair dismissal, which is amongst the most popular claims brought in the employment tribunal. In an ordinary unfair dismissal claim, the true reasoning for the action will be considered and whether it was fair i.e. This site uses JavaScript to make some controls and types of content available. Employees with more than a month but less than two years' service are entitled to a statutory week's notice from the employer (save for gross misconduct). Dismissal at the end of a fixed-term or specified-purpose contract may be considered unfair under the Unfair Dismissals Acts. If any of these apply, then an individual can usually bring an unfair dismissal claim without having to show that they have worked the required two years’ of service. The second is that although there is a redundancy situation there was inadequate consultation, unfair … If you are currently subscribed to receive any of our communications, please manage your preferences here. a sham redundancy. This is wrong: the employee can claim it from day one. ... No one has said anything about a legal case in the replies just explained that under two years … There's a common misconception amongst employers when dismissing an employee who does not have the qualifying one year of service required, in order to bring an ordinary unfair dismissal claim. Discussion. Given that unfair dismissal is one of the better known and frequently invoked employment rights, it is often at the forefront of employers' minds when considering dismissal. The first is that the reason for dismissal was not a genuine redundancy situation, ie. Where an employee has been designated to carry out activities in connection with preventing or reducing risks to health and safety at work, or where the individual is the workplace health and safety representative or member of a workplace safety committee, or is an employee who has raised health and safety issues with the employer, who has left or stays away from a dangerous workplace or who has taken action to prevent danger any dismissal relating to the employee carrying out these activities is automatically unfair and no qualifying period is required to bring an unfair dismissal claim. However, it is always worth taking advice from a legal professional to see if the facts of your case may allow for such an argument to be made. If an individual can show that they were automatically unfairly dismissed for a reason related to whistleblowing or health and safety, a further advantage is that the usual compensation cap for unfair dismissal does not apply. If there are any circumstances which could give an employee with less than two years' service the right to make a claim (for example the making of a protected disclosure shortly before a redundancy procedure where the employee is selected) we recommend that legal advice is sought at an early stage. for making a protected disclosure, refusing Sunday working (shop or betting workers), asserting rights under the Working Time Regulations or National Minimum Wage Regulations, performing functions as an occupational pension trustee or an employee representative on a TUPE transfer or collective redundancy, blacklisting (in respect of trade union membership), an employer’s duties under the auto-enrolment pension regime or the contravention of those duties, status as a part-time or fixed-term employee, trade union membership (or non-membership) or participation in trade union activities or protected industrial action, breach of an exclusivity clause in a zero hours contract. will no longer be relevant. Therefore, although the employee may not be able to claim unfair dismissal, if they have less than the qualifying service, they could claim that their dismissal was discriminatory. Firstly looking at a fair dismissal: a dismissal can be fair for a number of reasons provided the reason fits under … An employee is protected from unfair dismissal after two years of continuous service. Here is our two-minute blast on dismissing staff with short service, or under two years). To speak to a qualified employment solicitor at Springhouse Solicitors, call one of our offices, email us or use our web form…. We found that our clients can have contrasting assumptions or attitudes about dismissing an employee … Unfair dismissal in Namibia is defined by the Labour Act, 2007, under which the employer has the burden of the proof that a dismissal was fair. Dismissing employees with under two years’ service Generally, employees can only claim unfair dismissal against an employer if they have a minimum of two years’ service. Trade Union activities, … The assumption is often made that if the qualifying service requirement isn't met then there is no risk of a claim arising from the dismissal. Exceptions to the 2-year continuous employment, are where the dismissal is for one of the following reasons: 1. In particular, when dismissal is on the grounds of ill-health or capability to do the job then consideration should be given as to whether there could be an underlying disability. Read legal insights, our comments on the latest legal updates and articles covering all types of legal queries and scenarios, written by experts from our teams. The relevant legislation identifies the various statutory rights which are captured by this exception. This is often referred to for short as ‘the two year rule’ which term we will use here. Can I claim unfair dismissal under 2 years of employment? As the name suggests, once they have satisfied a tribunal that this was the case, the dismissal will automatically be deemed to be unfair. Unfair dismissal but employed under 2 years? However, there are significant exceptions to the general rule on qualifying service and there are other claims linked to dismissal which have no qualifying service requirement (such as a claim that the dismissal was discriminatory). The common misconception among employers is that unfair dismissal can only be claimed after an employee has two years’ service in the job. Explicitly listed as cases or unfair dismissal are those due to … The qualifying period of two years has been in force since April 2012; prior to this the qualifying period was only 12 months. However it is important that employers are mindful of the fact that there are exceptions to the general principle, such as those outlined above. An unfair dismissal… The following are the key exceptions which arise most frequently in practice and should be borne in mind: Dismissals which take place for a discriminatory reason will be actionable irrespective of length of service. The Court of Appeal has decided that employees dismissed in connection with a transfer of an undertaking must have 2 years' service before they can bring a claim for unfair dismissal. Compensation for a discriminatory dismissal is calculated in a similar way to an unfair dismissal claim in terms of compensation for loss of earnings except there is no cap on compensation in discrimination cases and … 13 replies 3.1K views Legacy_user. An employee needs 2 years’ service to claim unfair dismissal. As with much employment legislation, the devil is in the detail when it comes to claiming automatic unfair dismissal. membership or non membership of a trade union or partaking in trade union activities. However, although it is true that, in many situations, dismissing an employee who does not have two years' service will be low risk, there are a range of exceptions to the rule. This makes it significantly easier for an individual to win the case against their ex-employer. A dismissal is when an employer ends an employee's contract. 1,499 posts. This enforced time period significantly reduces the number of people able to bring a claim of unfair dismissal, which is amongst the most popular claims brought in the employment tribunal. Making a claim of automatic unfair dismissal can be a good approach for an individual to take, not just because it gets around the two year rule, but also because it can be a simpler claim to prove to an employment tribunal than a claim for ordinary unfair dismissal. That’s because employees only gain statutory protection … Where an individual asserts a relevant statutory right, or raises a claim to enforce a relevant statutory right then any dismissal for that reason will be unfair irrespective of length of service. However, if an employee can show that they have been dismissed from work for one of a number of statutory reasons, the usual time constraints do not apply. Original Poster. If you have been employed for less than 2 years, you can’t claim unfair dismissal. Employers should exercise caution before contemplating the dismissal … In fact, rather than it being two years, the basic rule is that employees require 103 weeks of service in order to bring an ordinary unfair dismissal claim. Unfairly dismissed controls and types of automatic unfair dismissal captured by this exception of the following reasons:.... Would like to receive marketing communications from us in line with your preferences here then one... 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