23 Nov 2022
23 Nov 2022
In most cases, employers will not need to provide a reason for dismissing an employee with less than 2 years of service, but there are reasons why it is important to take a cautious approach and ensure as an employer you are aware of the legalities and correct dismissal procedures.
Legally, you can usually dismiss an employee with less than 2 years of service without having to provide a fair reason for the dismissal and without having to go through a fair disciplinary or dismissal procedure. This is due to the fact that an employee gains statutory protection against unfair dismissal only after two years of continuous employment with the same employer.
On the other hand, where an employee has worked for the employer for 2 or more years, an employer would need to follow fair reasons set out under the Employment Rights Act of 1996. If they fail to do this, they run the risk of an unfair dismissal claim by the employee.
Fair reasons for dismissal include:
When looking to dismiss an employee with less than 2 years of service, it is important to be aware that there are circumstances in which a dismissal may be automatically classed as unfair and for that, there is no qualifying period of service. These are circumstances where the law protects employees who are dismissed where the dismissal violates their basic employment rights.
There are around 60 circumstances where an employee can claim automatic unfair dismissal. This includes any reason connected to pregnancy and maternity and/or for asserting any statutory rights e.g., annual leave or minimum wage. Additionally, it can include making a protected disclosure about a wrongdoing in the workplace and/or for raising a health and safety concern.
Protected characteristics is another area where employers must tread carefully. If an employee is dismissed for a reason related to a protected characteristic, it could amount to an unlawful discrimination and an unfair dismissal claim.
It may seem like the appropriate course of action is to speed up the dismissal process, however this is not always the case. We advise approaching each case with caution to avoid the potential pitfalls and reduce the risk of any legal action being taken against you.
Following a fair procedure not only reduces the risks, but also shows that you are an employer who cares about your employees and are willing to give people opportunities to improve where there has been capability or conduct issues.
We suggest getting in touch with our Employment Solicitor, Katie Bowen Nicholas, who, depending on the details of your matter, will advise you with the best action to take.
