How to avoid the pitfalls of short service dismissals
A common myth that employers hear when dismissing staff is “The employee can’t claim at tribunal if they have less than two years service.” However, this is not strictly true and something employers should be wary of.
We’ve highlighted the most common grounds on which an employee can claim automatic unfair dismissal and the tribunal claims that do not require qualifying service to be brought about to help arm employers with the right information to protect themselves.
On the whole, the most common grounds for automatic unfair dismissal are quite obvious, however there are areas within these that can be problematic.
Automatically unfair dismissal
Pregnancy, Maternity and Parental Rights
Pregnant employees are rightfully protected and will therefore present the most risk if dismissed.
If an employee is dismissed as a result of being pregnant, having time off sick due to pregnancy related illness or for antenatal appointments, going on maternity leave or requesting a flexible working request, the dismissal would be automatically unfair.
The period of ‘enhanced protection’ will start from the employer being advised of the pregnancy, or the employee becoming pregnant, and will continue until the employee returns from maternity leave.
Employees (male or female) who are dismissed for taking emergency leave to look after a sick child or for requesting parental leave would have a claim for automatic unfair dismissal.
Under the Family Friendly laws, parents have a statutory right to care for sick children or request unpaid time specifically to spend with their child.
If a dismissal is founded on the grounds of race, religion, sexual orientation, age, gender, ill health or gender reassignment then it will be automatically unfair. Under the Equality Act 2010 every employee, regardless of length of service, has the right to be treated equally. The more diverse a workforce is, the less likely an employee is able to claim that they are being treated unfairly due to a protected characteristic, as it is more likely that there will be a direct comparator to compare the claimant to.
Remember, not being discriminated is a day one right for each and every worker and employer!
Whistleblowing, also known as Protected Disclosure
If an employee has made a protected disclosure that is in the public interest and is subsequently dismissed for doing so, this is automatically unfair. There have been a lot of confusing judgements that have come from previous tribunals and it is difficult to know where the goal posts stand. A protected disclosure is now deemed as a disclosure that has been made to a formal body verbally or in writing i.e. a nurse who has complained verbally to the CQC.
Right to National Minimum Wage
Under the National Minimum Wage Act 1998 an employee is entitled to be paid the current National Minimum Wage set by the government. If an employee asserts this right to their employer and is dismissed, the dismissal would be automatically unfair. This is very pertinent at present within the care industry where employees have been underpaid for sleep-ins.
Opting out of Sunday working
Opting out of Sunday working is applicable to retail and betting shops only. Employees in these sectors have the legal right to opt out of Sunday working under the Sunday Trading Act 1994, and their employer must comply. If an employee is dismissed for opting out of Sunday working, this is automatically unfair. However, an employee who is contracted to work Sundays ONLY does not have the right to opt out.
Working Time Regulations
Breaching the Working Time Regulations is another statutory right that can land employers in tribunal. Employees are legally entitled to rest breaks throughout the course of the working week. Dismissing an employee for asserting their rights to correct breaks is automatically unfair.
Breach of Contract
When dismissing an employee, the way employers dismiss the employee is almost as important as the reason. A fair process should be followed in line with the ACAS code of practice. Not following the ACAS process could itself result in a claim at tribunal, even if the reason for the dismissal is deemed to be fair. A breach of contract claim for an employee with short service is generally compensation for the time between the date the employee was dismissed, and the date they would have been dismissed had a fair process been completed. It is very important to know what is detailed in the employee’s terms and conditions to ensure that enhanced policies don’t bind the employer in anyway.
The highest award in an unfair dismissal claim for 2017/18 was £415,227[i]
Context is everything
When looking to dismiss an employee that has short service, it is always best to consider the context in which you are dismissing. If you dismiss for the reasons of a breach of the employee’s statutory right, it would be deemed an automatic unfair dismissal. If that is the case, Supportis strongly recommend that employers seek legal advice.
It may be that a settlement offer is put forward on a commercial basis in order to part ways between both employer and employee saving costs from an Employment Tribunal, such as legal expenses and awards set by the judge.
Be aware that there are always exceptions to the rule that employees under two years’ service aren’t eligible to bring claims. If you are considering dismissing an employee with short service Supportis can advise you on best practice and ensure you avoid pitfalls. Call us on 0161 603 2156 to find out more about how we can help you and your business.
[i] The Ministry of Justice published its annual employment tribunal award statistics for 2017/2018