Is there any risk in dismissing staff with short service?
In short yes, it’s true that the qualifying length of service for an unfair dismissal claim is two years, however there are other claims that could be raised against an employer if the reason for the dismissal is considered to be ‘automatically unfair’ or discriminatory.
What are the automatically unfair reasons for dismissal?
- Family-related reasons, such as pregnancy, maternity leave, adoption leave or shared parental leave;
- Refusing to give up a right under the Working Time Regulations 1998 (SI 1998/1833), for example the right to a rest period;
- Whistleblowing;
- Taking action to enforce the right to be paid the national minimum wage;
- Trade union membership or activities; and
- A TUPE transfer (where the reason is not an economic, technical or organisational reason entailing changes in the workforce).
What are the protected characteristics within the Equality Act 2010 that could raise a discrimination claim from an employee?
- Age
- Disability
- Sex
- Gender reassignment
- Pregnancy and Maternity
- Race
- Sexual orientation
- Religion or belief
- Marriage and civil partnership
What is the impact of protected characteristics on potential compensation awards?
With discrimination claims there is no ceiling on the amount of compensation that can be awarded if a claim is successful. An individual can also be held personally liable for any discriminatory treatment of a colleague and therefore could be liable for some of the compensation awarded to the employee.
How do I minimise the risk when dismissing an employee with short service?
The ACAS Code of Practice on discipline and grievance sets out the standards for fairness. Employment Tribunals are legally required to take the Acas Code of Practice into account when considering relevant cases and can adjust awards by up to 25% for unreasonable failure to comply with any provisions of the code.
What is a fair reason for dismissal?
The Employment Rights Act 1996 provides five potentially fair reasons for dismissal, these are capability, misconduct, redundancy, statutory restriction or ‘some other substantial reason’. If an employer is dismissing for one of these reasons then it’s likely that the dismissal will be fair IF a fair process has been followed.
Do I need to have different procedures in place for employees with less than two years’ service?
In short no, there is no obligation to have different procedures for short serving employees. However, it is useful to outline within the procedures that a process could be shortened for employees with less than two years’ service. For example, in the disciplinary procedure it’s advisable to make reference to employees with less than two years’ service and to explain that the employer may not follow all of the stages in the procedure for short serving employees. It’s advisable to make company policies non-contractual however, where it is the case that a disciplinary policy is non contractual, an employee could claim for breach of contract if the employer has not followed the procedure correctly. There is no qualifying length of service for a breach of contract claim.
Do I need to give a short serving employee a reason for their dismissal?
Legally an employer is not required to give an employee with less than two years’ service a written statement outlining the reason for their dismissal. However I would recommend that an employee is informed in writing of the reason for their dismissal so that should the individual argue they have been dismissed due to a discriminatory reason, the employer is more likely to be able to defend a claim.
Do I need to give short serving employees the right to appeal against their dismissal?
There is no legal obligation to provide a short serving employee the right to appeal against their dismissal. However, it’s always recommended so that in the event that the individual does have a protected characteristic or is likely to raise a claim, there is a further stage at which any issues can be addressed internally. Whilst employees don’t have to exhaust their internal processes before raising a tribunal claim, it’s likely that this would give an employer the opportunity to rectify any potential procedural issues and therefore reduce risk in the event of a claim.
Do I need to formally invite the employee to a meeting to dismiss them or can I dismiss them on the spot?
It is always advisable to write to the employee to formally invite them to a meeting. This invite should give them the right to be accompanied and outline what the potential outcome of the meeting could be i.e. their dismissal.
Top Tips for dismissing short-service employees
1. Have clear procedures in place
As outlined above, it’s not necessary to have separate procedures in place for short and long serving employees but it’s always advisable that the procedures make reference to the fact that the company may adopt a shortened version of the process, where an individual has less than two years’ service.
2. Always double check the start date
If an individual is very close to the two year mark then the safest approach is to treat them as if they have already reached this, especially if a notice period would take then past two years service.
3. Treat each case on its own merits
It is not possible to adopt a blanket approach for all short serving employees because the circumstances of each case will be different. In some cases, it would be sensible to follow a more robust process, for example, when there are further risks associated with a potential disability.
4. Utilise probationary periods
Probationary periods are an excellent way of establishing if the employee is right for the business and vice versa. It’s important to use this time to identify any training needs and it’s often the case that where things aren’t working out, it becomes clear at an early stage. If it becomes clear part way through an individual’s probationary period that they are for example, underperforming, the employer shouldn’t wait until the end of this period to address the issues. In some cases things may improve but if not, a dismissal can feel more reasonable from the employee’s perspective if this is during their probationary period and can make it easier to address for the employer.
5. Consider how the dismissal would look in the eyes of an Employment Tribunal
When dismissing an employee with less than two years’ service, they cannot claim unfair dismissal but as outlined above there are other claims that they could potentially bring such as wrongful dismissal, breach of contract and discrimination. It’s therefore always important to consider what information or evidence you would be able to produce to demonstrate the reason for the dismissal if required. In the absence of any evidence, it would be difficult to defend a potential discrimination claim so this is always worth keeping in mind.
For further advice on your individual dismissal issues please contact Carrie