It appears to be relatively well understood that an employee requires at least two years’ continuous service before they can complain to an Employment Tribunal that they have been unfairly dismissed. However, there seems to be a common misconception that where an employee is dismissed who has less service than this, the employer will be free from the risk of any claim. This false sense of security leads some employers to either shorten, or completely ignore, their usual disciplinary, capability and redundancy procedures when dismissing an employee in such circumstances.

Whilst it is true that terminating the employment of somebody who has been employed for under two years will, in some circumstances, present a lower risk, this is by no means a hard and fast rule. Despite an employee having a short period of service, there are a number of potential claims that they could bring against their employer where they are dismissed. Therefore, it is extremely important for employers to be mindful of the risks that they could potentially be exposing themselves to. 

What claims can employees with less than two years’ service bring?

We have set out below some of the most notable claims, as well as those which we consider are more likely to arise as a result of the coronavirus disease (COVID-19) outbreak, which require no particular length of service.

1. Automatic unfair dismissal

There are a number of reasons that an employer may have for dismissing an employee which will be regarded as automatically unfair. As a result, the employee may still be able to bring a claim at the Employment Tribunal regardless of their length of service. There are several grounds for which an employee can claim automatic unfair dismissal. Some of these include:

• dismissal for a health and safety reason, which includes:
  • - bringing a reasonable health and safety concern to their employer’s attention if there is no recognised health and safety representative available;
  • - leaving their workplace or refusing to return to the workplace because they believe they are in serious and imminent danger which could not be avoided;
  • - taking appropriate steps to protect themselves or other people because they reasonably believe they are in serious and imminent danger;
  • - carrying out any health and safety activities which they have been asked to do by their employer; and
  • - performing or proposing to perform any function as a health and safety representative or committee member; 
• dismissal for asserting a statutory right, whether by bringing proceedings to enforce that right or alleging that the employer had infringed that right;
• dismissal in connection with an application for flexible working;
• dismissal relating to one of a number of prescribed family-related reasons, which includes reasons relating to pregnancy, childbirth or maternity, paternity leave and time off for dependants;
• dismissal relating to the national minimum wage;
• dismissal for trade union membership or non-membership, or participation in trade union activities; and
• dismissal in connection with exercising the right to be accompanied to a disciplinary or grievance hearing.

It seems likely that as a result of the current pandemic there will be a rise in claims relating to health and safety. For example, an employee who refuses to return to work because of the coronavirus could, depending on the individual circumstances, potentially claim the protection of the above provisions.

It is also worth noting that employees who are subjected to a detriment on health and safety grounds, for example disciplinary action, may also be able to bring a claim without having any particular length of service.

2. Whistleblowing

Where an employee has made a “protected disclosure” (commonly known as a whistleblowing complaint) and they are dismissed because they made that disclosure, they can claim unfair dismissal regardless of their length of service. A protected disclosure is any disclosure of information made by an employee which, in the reasonable belief of the individual making the disclosure, is made in the public interest and tends to show one or more of the following types of wrongdoing or failure has, or is likely, to take place:

• criminal offences;
• breach of any legal obligation;
• miscarriages of justice;
• danger to the health and safety of any individual;
• damage to the environment; and
• the deliberate concealing of information about any of the above.

There appears to be a real risk that complaints and communications from employees during the current pandemic might amount to a whistleblowing complaint. For example, disclosures relating to the provision of equipment or safety arising from PPE, social distancing guidance or compliance with the government’s policies.

It is, again, worth noting that employees also have the right not to be subjected to any detriment on the ground that they have made a protected disclosure. If such circumstances arise they could pursue a claim against their employer without needing to have any particular length of service.

3. Discrimination

The Equality Act 2010 protects employees with a “protected characteristic” against discrimination regardless of their length of service. There are nine protected characteristics which are as follows: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

We expect that certain types of discrimination claims may well increase as a result of the coronavirus. For example, where an employee is refusing to attend work due to a disability which they consider makes them vulnerable to the disease. Dismissal in such circumstances could potentially result in a claim of discrimination. 

4. Breach of contract

Breach of contract claims do not require any qualifying service. Therefore, if an employer does not comply with an employee’s contract of employment when dismissing, for example, by failing to pay them their notice pay, the employee can claim damages for breach of contract if they have suffered loss. 

Could the dismissal of employees with less than two years’ service be relevant in respect of a collective redundancy consultation exercise?

Where an employer is proposing to dismiss 20 or more employees as redundant at one establishment in any 90 day period, they have a legal obligation to inform and consult with appropriate representatives of the affected employees for a 30 day period (for 20-99 proposed redundancies) or 45 day period (for 100 or more proposed redundancies). If an employee with less than two years’ service has been dismissed and there appears to be no fair reason for the dismissal, it could potentially be inferred that they have been dismissed on grounds of redundancy. Therefore, this could have the effect of pushing the number of proposed dismissals within the 90 day period to at least 20, which would trigger the obligation to collectively consult.

Failure to comply with this obligation could lead to a protective award claim being issued in the Employment Tribunal, which if successful, could lead to compensation up to a maximum of 90 days’ gross pay per affected employee.

What steps should employers take?

In light of the points raised above, although it might be tempting for an employer to jump straight to dismissal where an employee has less than two years’ service, they would be wise to proceed with caution and carefully consider their decision, as well as the potential risks, before taking any such action. The safest position will be to undertake the same process as would be carried out for employees with at least two years’ service.

Should you have any queries regarding any of the points explored in this article, please do not hesitate to contact a member of our employment team.

Michelle Wooding, Employment Associate

24 June 2020