Employment law is complex and changes frequently, therefore for advice or assistance regarding your specific situation, contact us.
To be eligible to present a claim of unfair dismissal to an Employment Tribunal, all employees who have been employed since the 6 April 2012 need two years of continuous employment with their employer.
Employees who were employed before the 6 April 2012 only need one year of employment with the employer to present a claim of unfair dismissal against their employer.
Ending the temporary employment of a person employed on a temporary basis to cover another employee’s absence from work provided that the employer:
There are some reasons for dismissing an employee that are either automatically unfair or unlawfully discriminatory because they breach anti-discrimination laws. In these instances, an employee does not need to have two years of service with the employer to make a claim to an Employment Tribunal for unfair dismissal.
A list of the most common automatically unfair reasons for dismissing an employee are listed in the table below from number 11 and onwards.
If the reason or principal reason for dismissing an employee is an automatically unfair reason, the dismissal will be automatically unfair. An employee does not need two years’ service to present a claim of automatically unfair dismissal. Rather, in some instances one months’ service is required, but in others, there is no qualifying period of employment.
At the moment, the law protects 8 types of characteristics. These are called ‘protected characteristics’. These characteristics are split into 10 categories in the table below from 1 to 10. As you will see from the table below, some protected characteristics related to biological factors such as age, race and sex. Others relate to non-biological factors that are held by society and law to be important rights and choices for example, religion or belief or marital status.
Where any one or more of these protected characteristics play a part in the reason for dismissal, an employee does not need two years’ service to present a claim of unfair dismissal. There is no qualifying period of employment at all.
There are various forms of unlawful discrimination such as direct discrimination, indirect discrimination, harassment, and victimisation. In the case of disability discrimination, there are two additional types of unlawful discrimination referred to as: (i) a failure to make reasonable adjustments; and (ii) discrimination arising from an individual’s disability. Therefore, an allegation of unlawful discrimination does not necessarily mean that the accused is sexist, ageist or racist etc. Indirect discrimination is a good example of this. For instance, imagine this situation:
An employer requires all staff to have an attendance rate of 99% over a year. Any employee that does not achieve this will face disciplinary action and be dismissed. This rule applies to all staff, but it will negatively affect staff who have a physical or mental impairment that affects their ability to attend work at the rate of 99% in a year. If an employee is a disabled person and has fairly long periods off work due to the effects of the disability, medical treatment and or to adjust to medication, applying the same rule and dismissing him or her could be unlawful indirect discrimination.
An important point is that the unlawful discrimination based on a protected characteristic does not have to be the only or even the main reason, for a decision to dismiss to be unlawful and discriminatory. Even a taint of discrimination is enough to make the decision unlawful and discriminatory. Of course, this does not mean that an employer can never dismiss an employee because they have a protected characteristic.
There is plenty of additional detail and nuance in discrimination law, including what constitutes the various types of discrimination – this is therefore a general and very broad overview. Always seek legal advice on your specific situation.
Other possible legal claims that do not require a prescribed period of employment include a breach of contract and an unlawful deduction from wages.
The table that appears in the following section lists the protected characteristics from number 1 to 10. The most common automatically unfair grounds for dismissal, are listed from number 11 onwards. These are the most common, not all of them. Additionally, the grounds can be expanded, including as new laws are made to cover additional rights and groups.
The protected characteristics that are protected in law, making it unlawful for discriminatory grounds for dismissing an employee (or failing to short-list or select an applicant for a job)
Sexual Orientation (sexuality)
Religion or Belief
Marriage and civil partnership
Automatically unfair reasons for dismissing an employee
The most common automatically unfair grounds for dismissing an employee
Whistleblowing / Protected Interest Disclosure
Political opinion or affiliation
Trade Union membership or activities
Health and Safety issues or responsibilities
Absence or leave for family and domestic reasons
Time off for dependants
Absence due to jury service
Time off for public duties
Asserting a relevant statutory right
Part - time worker status
Fixed - term worker status
Parental leave rights
Paternity leave rights
Adoption leave rights
Trustee of an Occupational Pension Scheme
Sunday working - Shop workers
Sunday working - Betting Shop Workers
Dismissing a temporary employee who was covering the absence of a permanent employee
An Employee Representative
Study & Training: Requesting study leave 16 to 18-year olds
Study & Training: Requesting study leave- other cases not involving 16 to 18 year olds
Participation in study and training
Working Time cases
National Minimum Wage cases
Dismissed on the ground of redundancy for a reason wholly, or partly related to the *matters listed above
Pressure from a third party to dismiss unfairly
Suspension on medical grounds
A zero hours contract employee
Eligibility for the National Living Wage
Partner of a pregnant woman exercising the right to attend ante-natal appointments