It is a common misconception amongst employers that dismissing an employee who does not have the qualifying service to bring an ordinary unfair dismissal claim will mean that they are "safe" from an employment tribunal claim. This often leads employers to dispense with their usual disciplinary, capability and redundancy procedures when dealing with the dismissal of an employee with short length of service. However, although it is true that, in many situations, dismissing an employee who does not have qualifying service will be low risk, there are a range of exceptions to the rule.

Qualifying Service Rule

The basic rule is that an employee who started work with their employer on or after 6 April 2012 requires two years' service in order to bring an ordinary unfair dismissal claim. Anyone who started employment prior to that date requires only one year's service in order to bring such a claim.

The Exceptions

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 assumption is often made that if the qualifying service requirement isn't met by the employee then there is no risk of a claim arising from the dismissal. However, there are significant exceptions to the general rule that two years' service is required to claim unfair dismissal, and there are other claims linked to dismissal which have no qualifying service requirement (such as a claim that the dismissal was discriminatory). This means that close scrutiny should be given to the reason for, and circumstances of, dismissal.

As indicated, there are a number of exceptions to the requirement for qualifying service. The following are the key exceptions which arise most frequently in practice and should be borne in mind:

  • Is the dismissal discriminatory?

Dismissals which take place for a discriminatory reason will be actionable irrespective of length of service. 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. Compensation for a discriminatory dismissal is calculated in a similar way to an unfair dismissal claim in terms of compensation for loss of earnings, but there is no cap on compensation in discrimination cases as there is in ordinary unfair dismissal, and an injury to feelings award is also payable where a finding of discrimination is made.

In light of this, when considering dismissal, employers should consider the reason for dismissal and whether it is linked in any way to a protected characteristic. The protected characteristics are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. If there is any concern that the dismissal could be regarded as linked to one of the protected characteristics then we recommend that legal advice is taken in order to assess the degree of risk involved.

  • Is the dismissal for making a protected disclosure (i.e. a "whistleblowing" complaint)?

Where an employee has made a protected disclosure and is dismissed because they made that disclosure, they can claim unfair dismissal irrespective of length of service. 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 specified in the relevant legislation has taken place, or is likely to take place (commonly known as a whistleblowing complaint). Therefore if an employee has made an allegation which relates to one of the following categories of wrongdoing, and they are subsequently dismissed, then there is the risk that they will claim that dismissal was linked to the disclosure and bring a claim of unfair dismissal irrespective of length of service:

  • Criminal offences
  • Breach of any legal obligation
  • Miscarriages of justice
  • Danger to the health and safety of any individual
  • Damage to the environment
  • The deliberate concealing of information about any of the above

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". Provided the grievance was made in the public interest and the mistreatment amounted, in the reasonable belief of the employee, to breach of a legal obligation, then it may amount to a protected disclosure. As such, they could then claim that their dismissal was because they had made a protected disclosure and that it is, therefore, unfair, regardless of their length of service.

  • Is the dismissal for a health and safety reason?

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, care should be taken if dismissal is being considered. The law recognises that such individuals may come into conflict with their employer by the nature of their appointment and therefore protects them against dismissal because of their involvement in health and safety activities. Therefore a 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 these circumstances.

  • Has the individual asserted a statutory right?

Where an individual asserts a relevant statutory right, or raises a claim to enforce a relevant statutory right, they are protected against dismissal on that basis. The relevant legislation identifies the various statutory rights which are captured by this exception. These include 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. If such a right has been asserted, and dismissal is for that reason, then the dismissal will be unfair irrespective of length of service.

  • Is the employee a trade union representative?

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. Care should therefore be taken where dismissal of such an individual is being considered.

  • Does the employer have a contractual disciplinary or redundancy policy?

Some employers' dismissal processes are contractually binding. 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. There is no qualifying service requirement in order to bring a claim of breach of contract. 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 relation to employees who commenced employment on or after 6 April 2013) in order to avoid this risk. It is not altogether straightforward making a contractual policy non-contractual and advice should be taken.

These are only a selection of the most commonly claimed exceptions to the normal requirement for qualifying service and we would recommend that legal advice is sought if there is any doubt in relation to the potential risk of a dismissal.

Minimising the Risk

In each of these examples, although dismissal may (on the face of it) be for some reason entirely unrelated to their protected status, it is open for the Tribunal to look behind the reason given by the employer and explore the employee's argument that the reason given by the employer is a smokescreen for the real reason. For example, if an employee has made a protected disclosure to the effect that their employer is committing a criminal offence and soon after making that complaint they are selected for redundancy, the Tribunal could conclude that the real reason for their dismissal was the fact that they made a protected disclosure if it is not satisfied that the employer has demonstrated that the selection for redundancy was genuine.

Employers often run into difficulty because, although they have a genuine and legitimate reason for dismissal, the assumption that dismissal can take place without any sort of dismissal procedure leads to a lack of evidence as to the true reason for dismissal. The best approach for employers considering dismissing an individual who it considers may have one of the protections identified above, is therefore to ensure that the reason for dismissal and the process followed is as robust as possible. The more evidence that the employer can present to demonstrate that they had a legitimate reason for dismissal, the more likely they will be in a position to show that the dismissal was for a reason which does not bring the case into one of the exceptions to the two year rule.

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. However it is important that employers are mindful of the fact that there are exceptions to the general principle, such as those outlined above, and that additional protections provided to some categories of individual. Employers should always keep an appropriate paper trail in order to demonstrate that the reason for dismissal was not unlawful.