Do you have to follow a procedure before dismissing an employee with under 2 years’ service?

This is a question that often vexes employers and is one we frequently get asked.   In theory, you should not have to follow a dismissal or disciplinary procedure before dismissing an employee with less than 2 years’ service because they do not have the necessary qualifying service to bring an unfair dismissal claim.   The problem with this, however, is that it ignores the fact that there are many claims that can be brought in employment law that do not require the employee to have a minimum period of employment. 

Employees with 2 years service and over

Only employees who have 2 years’ continuous service are entitled to bring a stand-alone claim of unfair dismissal.   It goes without saying, therefore, that if you are considering dismissing an employee with over 2 years’ service, you need to have both a fair reason for dismissal and to follow a fair procedure.   

There are 5 potentially fair reasons for dismissal – conduct, capability (which can include poor performance and ill health), redundancy, breach of a statutory requirement and “some other substantial reason”.

The procedure you will need to follow will vary depending on the reason for dismissal.  Typically, in misconduct or capability cases, this will involve following a formal disciplinary procedure and providing the employee with a series of warnings and opportunities to improve before considering whether to dismiss. 

In redundancy situations, the procedure will involve carrying out a fair selection process, consulting with the affected employee (either individually or collectively) and offering any suitable alternative employment.  

Common to all dismissals, whether by reason of redundancy, misconduct, capability, illegality or some other substantial reason, is the need to follow a fair dismissal process.  This will involve, as a minimum, inviting the employee to a meeting before you make your decision to dismiss, providing them with a fair hearing including the right to be accompanied and offering them the right of appeal. 

Employees with less than 2 years’ service

As mentioned above, it can be tempting to assume that you can bypass any formal dismissal process for employees who do not qualify to bring an unfair dismissal claim.   However, there are many employment rights that do not rely on the employee having a minimum length of service and which you need to be aware of before deciding whether or not to dispense with any kind of procedure.

Discrimination

Chief among the protections that employees have from day one of their employment is the right not to be discriminated against in relation to a “protected characteristic”.  These protected characteristics are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, or sexual orientation.   

An employee does not need a minimum length of service to bring a claim if they have been dismissed for a reason related to any of these protected characteristics.     

Automatic unfair dismissal claims

There is also no requirement to have a qualifying period of employment in most cases of “automatically” unfair dismissal.  

An automatically unfair dismissal is one where an employee is dismissed for a reason prescribed under statute as being an “inadmissible” reason for dismissal.   In the vast majority of cases, an employee who alleges that they have been dismissed for an inadmissible reason does not need any qualifying service to bring a claim for automatically unfair dismissal.  These include where the reason for dismissal is:

1. For reasons connected with pregnancy or childbirth, maternity leave, adoption leave or the exercise of any other parental rights at work.

2. For a health and safety reason.

3. For a reason connected with rights under the Working Time Regulations 1998 including the right to statutory annual leave, to daily and weekly rest breaks etc.

4. Related to the national minimum wage.

5. For making a protected disclosure (whistleblowing).

Wrongful dismissal and breach of contract claims

Aside from statutory claims, it is also important to remember that the employee’s contract may contain a contractual requirement for an employer to follow a specific process before termination, irrespective of the employee’s length of service.      If the contract contains a contractual obligation to follow, for example, a disciplinary or redundancy procedure, and the employer fails to follow it, the employee may claim for the loss of earnings for the period of time that the procedure would have taken had it been followed.   This type of contractual claim is, thankfully, rare because most employment contracts (and certainly the ones we draft for our customers) will state that the disciplinary procedure is non contractual.   In the public sector, however, it is quite common for disciplinary procedures to have contractual status.

Recommendations and best practice

Although you could choose to forgo a dismissal process for employees with less than 2 years’ service, the existence of rights that do not require any qualifying period mean that this approach is not risk free. As such, we recommend following a fair dismissal process for all employees, regardless of their length service, wherever possible.   This is particularly advisable where there is a known risk that the employee could have a claim for which no qualifying period applies.  

A fair dismissal procedure is one that complies with the Acas Code of Practice on Disciplinary and Grievance Procedures and consists of the following steps:

• Dealing with the issues promptly and without unreasonable delay;
• Carrying out a fair investigation to establish the facts;
• Inviting the employee in writing to attend a meeting and providing them with details of the alleged misconduct/poor performance or redundancy situation (as the case may be);
• Advising the employee of their right to be accompanied;
• Holding a meeting to explain the case and present evidence to the employee and, in turn, giving the employee the opportunity to put their case in response before making any decision; and
• Informing the employee of the decision in writing and allowing them a right of appeal.

There are many reasons why we recommend the above approach:

• By following a fair dismissal process and giving the employee the opportunity to explain their actions or present their case, you reduce the risk of the employee claiming that their dismissal was automatically unfair or discriminatory.  

• Holding a meeting with the employee before you decide to dismiss can sometimes lead you to discover other factors which may require you to re-consider whether dismissal is the right decision.  For example, you may find that an employee’s poor performance is due to a disability and that the issues could be resolved with the right support.  

• Going through a proper process and having the documentation in place to show you did this, will help demonstrate that the reason being relied upon by you for dismissal is the genuine one.   This will put you in a stronger position if you are required to defend a claim brought by an employee who alleges that the real reason for dismissal is an unlawful one. 

• In a similar vein to the above, an employment tribunal may be more receptive to a claim, for example, that an employee has been dismissed because of a protected characteristic, if the employer has not followed a fair dismissal process.

• If an employee is successful in a claim of automatically unfair dismissal claim or discrimination, the employment tribunal can adjust the amount of compensation awarded by up to 25% if the employer has unreasonably failed to comply with the Acas Code of Practice on Disciplinary and Grievance Procedures.   

If you are contemplating dismissing a member of staff but are unsure how to approach it, please contact us.