Employment rights -  Employees with less than 2 years service

Employment law is complex and changes frequently, therefore for advice or assistance regarding your specific situation, contact us.

Employment rights - Employees with less than 2 years service

Information for
Individuals
Employers
Category
Employment Rights
Date Published
7th May 2020

This is not a comprehensive or complete guide to dismissal, automatically unfair dismissals, or discrimination. These are complex, detailed areas of law and the specific facts and circumstances of each case are also highly relevant. There are also reasons other than being dismissed that can lead an employee to make a complaint to an Employment Tribunal.

Please keep this in mind and accept this as an overview.

The General Rule - The length of service required for an employee to make a claim to an Employment Tribunal

  • Employees employed from the 6 April 2012:

    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 employed before 6 April 2012:

    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.

Lawful reasons for dismissal, subject to an accompanying fair process

  • Conduct
  • Redundancy
  • Capability – Poor work performance
  • Capability - Ill health (where the termination of employment is supported or recommended by a medical opinion)
  • Illegality – To prevent illegal employment
  • Some other substantial reason
  • Ending the temporary employment of a person employed on a temporary basis to cover another employee’s absence from work provided that the employer:

    • Notified the person in writing before the start of the temporary cover, that the employment was temporary pending the return of the absent employee; and The reason for the absent employee’s absence is:
      • Maternity leave
      • Absence due to pregnancy or childbirth
      • Paternity leave
      • Adoption leave
      • Medical suspension

Reasons for dismissal

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. 

  • Automatically unfair reasons:

    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. 

  • Discrimination:

    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.

Discrimination and dismissing employees

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. 

Notice

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.

About the checklist

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)

1.
Disability

Physical or mental impairments

Examples - cancer, multiple sclerosis, insulin-dependent diabetics. Other potential disabilities are depression, bi-polar, and arthritis

2.
Age
3.
Sex
4.
Pregnancy
5.
Maternity rights

Pay, leave, time off

6.
Race
7.
Sexual Orientation (sexuality)
8.
Religion or Belief
9.
Gender reassignment
10.
Marriage and civil partnership

Automatically unfair reasons for dismissing an employee
The most common automatically unfair grounds for dismissing an employee

11.
Whistleblowing / Protected Interest Disclosure
12.
Political opinion or affiliation
13.
Trade Union membership or activities
14.
Health and Safety issues or responsibilities
15.
Flexible Working

Including applying or proposing to apply

16.
Absence or leave for family and domestic reasons
17.
Time off for dependants
18.
Absence due to jury service
19.
Time off for public duties
20.
Asserting a relevant statutory right

Such as – the right to statutory minimum notice, deductions from pay, trade union activities and time off for trade union activities, national minimum wage (pay), working time regulations (rest breaks, holiday, holiday pay etc ),  and 16-18 year olds right to time off for study or training.

21.
Part - time worker status
22.
Fixed - term worker status
23.
Parental leave rights

Including shared parental leave

24.
Paternity leave rights
25.
Adoption leave rights
26.
Tax Credits

Entitlement to, enforcing, or proposing to enforce rights

27.
Trustee of an Occupational Pension Scheme

Taking action, or proposing to take action to enforce

28.
Pension enrolment
29.
Sunday working - Shop workers

Shop workers who refuse to work on Sunday or particular Sundays (or protected or opted-out workers)

30.
Sunday working - Betting Shop Workers

Betting Shop Workers who refuse to do betting work on Sundays, or particular Sundays (or protected or opted-out workers)

31.
Dismissing a temporary employee who was covering the absence of a permanent employee

This is only automatically unfair if the employer failed to inform the temporary employee in writing that:

A, The job was temporary before the job started

and

B, The job would end when the permanent employee was due to return to work.

32.
An Employee Representative
33.
Study & Training: Requesting study leave 16 to 18-year olds

Currently excluding employers with fewer than 250 employees

34.
Study & Training: Requesting study leave- other cases not involving 16 to 18 year olds

Currently excluding employers with fewer than 250 employees

35.
Participation in study and training

Currently excluding employers with fewer than 250 employees

36.
Working Time cases

For example proposing to exercise the right to holiday or rest breaks, or refusing to sign a working time opt-put agreement

37.
National Minimum Wage cases
38.
Black listing
39.
Dismissed on the ground of redundancy for a reason wholly, or partly related to the *matters listed above

Most common 11, 14, 15, 18, 20-22, and 26-32

40.
Pressure from a third party to dismiss unfairly
41.
Suspension on medical grounds
42.
A zero hours contract employee

Protected against dismissal for working for other employers/ not rendering exclusive service under the zero hours contract

43.
Eligibility for the National Living Wage
44.
Partner of a pregnant woman exercising the right to attend ante-natal appointments
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