Wrongful Dismissal Under 2 years. To speak to a qualified employment solicitor at Springhouse Solicitors, call one of our offices, email us or use our web form…. It is important to note that the reason why someone was dismissed from work must be for one of these reasons and that is not always an easy thing to demonstrate factually. Tuesday 17th February 2015. 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. Dismissal at the end of a fixed-term or specified-purpose contract may be considered unfair under the Unfair Dismissals Acts. This is because for the purposes of an unfair or constructive dismissal claim they would be allowed to include their statutory entitlement to 1 week's notice which gets them across the finishing line of 2 complete years' service. If they do not, an employee could make a claim for unfair dismissal… 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. 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. Switched-on clients understand that there are two answers that count here – either less than two years or more than two years. However, there are some important exceptions to the so-called “two year rule” which can be extremely helpful for individuals who might otherwise have no means of redress against their ex-employer. Unfair dismissal but employed under 2 years? We found that our clients can have contrasting assumptions or attitudes about dismissing an employee … No further consideration will go on to determine whether the employer acted reasonably in dismissing or the procedural fairness of the action, as this will no longer be relevant. 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. However it is important that employers are mindful of the fact that there are exceptions to the general principle, such as those outlined above. The other exceptions to the service requirement include when the dismissal is for a reason connected to:-. If you’ll have worked for your employer for at least 2 years when your job ends, it’s also automatically unfair if you’re dismissed because: the business was transferred to another employer you didn’t … If you are currently subscribed to receive any of our communications, please manage your preferences here. There is no qualifying service requirement in order to bring a claim of breach of contract. 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. JavaScript is disabled in your web browser. At Morton Fraser Lawyers we have highlighted clarity as our guiding principle. By providing your details and interests you agree that you wish to receive marketing communications from us in line with your preferences stated here. 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. If the employee started their job prior to 6 April 2012 then only one years’ of continuous service is needed. However, you may be able to show that the reason you had so much time off sick was that you have a … 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. Although it’s referred to as a “dismissal” in law, it is in practical terms a resignation. As with much employment legislation, the devil is in the detail when it comes to claiming automatic unfair dismissal. Explicitly listed as cases or unfair dismissal are those due to … If you have been employed for less than 2 years, you can’t claim unfair dismissal. This is often referred to for short as ‘the two year rule’ which term we will use here. 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. This means that if the employer does not follow their own procedure in dismissing an employee then the dismissed employee may have a claim for breach of contract and be in a position to claim damages resulting from the breach of procedure. This applies to all our services from the straightforward to the more complex. Morton Fraser LLP is authorised and regulated by the Financial Conduct Authority. The protected characteristics are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. Morton Fraser LLP accepts no responsibility for the content of any third party website to which this webpage refers. Employers should always keep an appropriate paper trail in order to demonstrate that the reason for dismissal was not unlawful. An overview of the law relating to unfair dismissal, including what is a dismissal, who can claim unfair dismissal, potentially fair reasons for dismissal, the requirements for a dismissal to be fair (procedure and reasonableness), automatically fair and unfair dismissals, procedure in an unfair dismissal … 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. 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… Select if you would like to receive our expert knowledge through our monthly newsletter related to your enquiry. Importantly there are various other types of claim which may be brought without any qualifying period. The second is that although there is a redundancy situation there was inadequate consultation, unfair … It's important that an employer uses a fair and reasonable procedure to decide whether to dismiss someone. Depending on the circumstances this may amount to a protected disclosure and there is a risk of a claim. 22 March 2017 at 10:12PM edited 30 November -1 at 12:00AM in Employment, Jobseeking & Training. 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. In light of this when considering dismissal employers should consider whether the reason for dismissal is linked in any way to a protected characteristic. 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. Dismissals which take place for a discriminatory reason will be actionable irrespective of length of service. In the case … will no longer be relevant. In such circumstances, they will be able to bring their unfair dismissal claim whatever their length of service. Original Poster. Reply Prev of 2. 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. 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. 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.) 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. These include discrimination, deduction from wages and equal pay and should not be overlooked. The qualifying period of two years has been in force since April 2012; prior to this the qualifying period was only 12 months. 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. The list of potential automatic unfair dismissal reasons is long and complex. 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. The common misconception among employers is that unfair dismissal can only be claimed after an employee has two years’ service in the job. 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. 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. 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. This means that close scrutiny should be given to the reason for, and circumstances of, dismissal. PRE EMPLOYMENT CHECKS An employer's first obligation is to check that all potential employees have the right to work in the UK. ... No one has said anything about a legal case in the replies just explained that under two years … 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). An unfair dismissal… The general rule is that only employees who have been employed continuously for two years or more can bring a claim of 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 an injury to feelings award is also payable where a finding of discrimination is made.