This means that if the employer does not follow their own procedure in dismissing an employee then the dismissed employee may have a claim for breach of contract and be in a position to claim damages resulting from the breach of procedure. Exceptions to the 2-year continuous employment, are where the dismissal is for one of the following reasons: 1. Making a claim of automatic unfair dismissal can be a good approach for an individual to take, not just because it gets around the two year rule, but also because it can be a simpler claim to prove to an employment tribunal than a claim for ordinary unfair dismissal. In fact, rather than it being two years, the basic rule is that employees require 103 weeks of service in order to bring an ordinary unfair dismissal claim. In particular, when dismissal is on the grounds of ill-health or capability to do the job then consideration should be given as to whether there could be an underlying disability. You can access the PDF version at the link below, or if you would like a free hard copy, please email employment@morton-fraser.com with your name and address. Marketing communications will normally be sent by email and may occasionally be sent by post. Select if you would like to receive our expert knowledge through our monthly newsletter related to your enquiry. Dismissals which take place for a discriminatory reason will be actionable irrespective of length of service. In the case … It is important to note that the reason why someone was dismissed from work must be for one of these reasons and that is not always an easy thing to demonstrate factually. However, you may be able to show that the reason you had so much time off sick was that you have a … In an ordinary unfair dismissal claim, the true reasoning for the action will be considered and whether it was fair i.e. Employees with more than a month but less than two years' service are entitled to a statutory week's notice from the employer (save for gross misconduct). Read legal insights, our comments on the latest legal updates and articles covering all types of legal queries and scenarios, written by experts from our teams. Our 2019/20 Employment Law Fact Card is now available. An employee usually has the right to make an unfair dismissal claim to an employment tribunal if: they have 'employee' employment status they've worked for their employer for 2 years If they've been dismissed for an 'automatically unfair' … Many of you feel comfortable with disciplining and dismissing staff who have more than two years service and therefore who are able to claim unfair dismissal. Although two years’ continuous employment is generally needed to be able to bring an unfair dismissal claim, if the dismissal is for one of what are called “automatically unfair… However, it is always worth taking advice from a legal professional to see if the facts of your case may allow for such an argument to be made. membership or non membership of a trade union or partaking in trade union activities. Compensation for a discriminatory dismissal is calculated in a similar way to an unfair dismissal claim in terms of compensation for loss of earnings except there is no cap on compensation in discrimination cases and … In such circumstances, they will be able to bring their unfair dismissal claim whatever their length of service. It is automatically unfair to dismiss someone for a reason connected to: Where one of these reasons applies and automatic unfair dismissal is established, procedural unfairness (how disciplinaries were conducted etc.) Division XIV - Unjust Dismissal of Part III of the Canada Labour Code provides a procedure for making complaints against a dismissal that an employee considers to be unjust.. Your personal data will be used in accordance with our privacy policy. No further consideration will go on to determine whether the employer acted reasonably in dismissing or the procedural fairness of the action, as this will no longer be relevant. A dismissal may be automatically unfair dismissal where, for example, the reason relates to raising whistleblowing or … Compensation for a discriminatory dismissal is calculated in a similar way to an unfair dismissal claim in terms of compensation for loss of earnings except there is no cap on compensation in discrimination cases and an injury to feelings award is also payable where a finding of discrimination is made. The relevant legislation identifies the various statutory rights which are captured by this exception. If they do not, an employee could make a claim for unfair dismissal… The common misconception among employers is that unfair dismissal can only be claimed after an employee has two years’ service in the job. exercising maternity, parental or time off for dependants rights; exercising rights under working time legislation; exercising rights under national minimum wage legislation; exercising rights in relation to working tax credits; the making of a flexible working application; requests for time off for study and training; selection for redundancy for an automatically unfair reason; involvement in trade union recognition or bargaining; taking part in protected industrial action; performing the functions of a works body member, rep, candidate or participant; performing the functions of a pension consultation rep; exercising rights under part-time workers legislation; exercising rights under fixed term employees legislation; performing the functions of a working time rep; performing the functions of a pension trustee; performing the functions of an employee rep; and. Below we paraphrase those which are likely to have the widest application. will no longer be relevant. Carrying out a right... With more accredited specialists than any other team in Scotland, we offer a fixed fee for meeting with you, assessing your situation, advising you... Dismissing employees with less than two years' service, Challenging suspension and withdrawal of licence, Executive dismissals and negotiated departures, EEA/EU nationals and their family members, International Relocation and International Parental Child Abduction, A guide to employment law in Scotland, England & Wales, Danger to the health and safety of any individual, The deliberate concealing of information about any of the above. A protected disclosure is a disclosure of information made by an employee which that individual reasonably believes shows that one or more of the 6 types of malpractice set out below has taken place, or is likely to take place (commonly known as a whistleblowing complaint): This situation sometimes arises where an employee has raised a grievance alleging that they have been mistreated by their employer in some way, and they are subsequently dismissed for being a "troublemaker". This is because for the purposes of an unfair or constructive dismissal claim they would be allowed to include their statutory entitlement to 1 week's notice which gets them across the finishing line of 2 complete years' service. An employee needs two years’ service in order to claim ordinary unfair dismissal, which is the most common claim leading to settlement agreements (but see below for exceptions). This enforced time period significantly reduces the number of people able to bring a claim of unfair dismissal, which is amongst the most popular claims brought in the employment tribunal. a sham redundancy. However, when it comes to claims for automatic unfair dismissal, all an individual needs to prove is that the cause for their dismissal from work was one of the automatically unfair reasons. Explicitly listed as cases or unfair dismissal are those due to … was it one of the five fair reasons laid down in the legislation (conduct, capability, redundancy, illegality or some other substantial reason) and was this really why the employer dismissed in this case? This enforced time period significantly reduces the number of people able to bring a claim of unfair dismissal, which is amongst the most popular claims brought in the employment tribunal. A dismissal which purports to be for redundancy reasons can be challenged on two bases. If you’ll have worked for your employer for at least 2 years when your job ends, it’s also automatically unfair if you’re dismissed because: the business was transferred to another employer you didn’t … In 2012, the … At Morton Fraser Lawyers we have highlighted clarity as our guiding principle. Unfair dismissal but employed under 2 years? Dismissing employees with under two years’ service Generally, employees can only claim unfair dismissal against an employer if they have a minimum of two years’ service. Reply Prev of 2. If there are any circumstances which could give an employee with less than two years' service the right to make a claim (for example the making of a protected disclosure shortly before a redundancy procedure where the employee is selected) we recommend that legal advice is sought at an early stage. It's important that an employer uses a fair and reasonable procedure to decide whether to dismiss someone. This means that an employee who starts employment on 1 September 2013 will reach two years’ continuous employment on 31 August 2015. The Employment Rights Act 1996 sets out various scenarios in which an employee will be regarded as being automatically unfairly dismissed. This is wrong: the employee can claim it from day one. However, the employer can prevent this by meeting these 3 conditions: The … Dismissal at the end of a fixed-term or specified-purpose contract may be considered unfair under the Unfair Dismissals Acts. 2 Next Reply Author. An unfair dismissal… Depending on the circumstances this may amount to a protected disclosure and there is a risk of a claim. The second is that although there is a redundancy situation there was inadequate consultation, unfair … An overview of the law relating to unfair dismissal, including what is a dismissal, who can claim unfair dismissal, potentially fair reasons for dismissal, the requirements for a dismissal to be fair (procedure and reasonableness), automatically fair and unfair dismissals, procedure in an unfair dismissal … Discussion. 22 March 2017 at 10:12PM edited 30 November -1 at 12:00AM in Employment, Jobseeking & Training. This involves an assessment of whether the employer acted reasonably, including whether or not it followed a fair procedure when carrying out the dismissal. 13 replies 3.1K views Legacy_user. Unfair dismissal in Namibia is defined by the Labour Act, 2007, under which the employer has the burden of the proof that a dismissal was fair. Here is our two-minute blast on dismissing staff with short service, or under two years). Tuesday 17th February 2015. However it is important that employers are mindful of the fact that there are exceptions to the general principle, such as those outlined above. Making a contractual policy non-contractual is not altogether straightforward and advice should be taken before doing so. In light of this when considering dismissal employers should consider whether the reason for dismissal is linked in any way to a protected characteristic. It is tempting to fast track dismissal processes where the individual has less than two years' service, and in some situations it is appropriate and legitimate to do so. This is often referred to for short as ‘the two year rule’ which term we will use here. Exceptions to the two-year … This will allow the level of risk to be assessed and steps to be taken to ensure that, if an employee were to make a claim, you will be in the best position possible to defend the claim. An employee needs 2 years’ service to claim unfair dismissal. Exceptions for Unfair Dismissal | Length of service not required. Switched-on clients understand that there are two answers that count here – either less than two years or more than two years. There is no qualifying service requirement in order to bring a claim of breach of contract. These include discrimination, deduction from wages and equal pay and should not be overlooked. In addition, if such a reason for the dismissal can be shown then it will automatically be ruled that the employee was dismissed unfairly; there is no need to show that the employer acted unreasonably or failed to follow a fair procedure. You can unsubscribe at any time from all marketing communications by emailing us. This directs the way we communicate, the way we advise, the way we conduct relationships with our clients and the way we are totally transparent and upfront about our charges. If you have been employed for less than 2 years, you can’t claim unfair dismissal. If an employee is dismissed without notice, or with less than a week's notice, their date of termination for unfair dismissal purposes should be calculated by adding the statutory week. The list of potential automatic unfair dismissal reasons is long and complex. Furthermore, in normal unfair dismissal cases, the Tribunal needs to consider if the motive was fair, and then go on to consider whether, in all the circumstances, the action was fair. The protected characteristics are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. Morton Fraser LLP accepts no responsibility for the content of any third party website to which this webpage refers. This means that close scrutiny should be given to the reason for, and circumstances of, dismissal. Original Poster. By providing your details and interests you agree that you wish to receive marketing communications from us in line with your preferences stated here. Protection was granted to companies against claims of unfair dismissal from employees, initially for one year and then for two years. Therefore, although the employee may not be able to claim unfair dismissal, if they have less than the qualifying service, they could claim that their dismissal was discriminatory. Where the dismissal is automatically unfair, two years’ service is not normally required. However, although it is true that, in many situations, dismissing an employee who does not have two years' service will be low risk, there are a range of exceptions to the rule. If the employer dismiss them on 31 August, the employee … The qualifying period of two years has been in force since April 2012; prior to this the qualifying period was only 12 months. Some employers' dismissal processes are contractually binding. However, if an employee can show that they have been dismissed from work for one of a number of statutory reasons, the usual time constraints do not apply. The qualifying period of two years has been in force since April 2012; prior to this the qualifying period was only 12 months. The other exceptions to the service requirement include when the dismissal is for a reason connected to:-. JavaScript is disabled in your web browser. The general rule is that only employees who have been employed continuously for two years or more can bring a claim of unfair dismissal. Employers should exercise caution before contemplating the dismissal … Can I claim unfair dismissal under 2 years of employment? Employers are aware of this deadline and will often work to terminate an employment contact before the two year anniversary in order to reduce their litigation risk. If you’ll have worked for your employer for at least 2 years when your job ends, it’s also automatically unfair if you’re dismissed because: the business was transferred to another employer you didn’t … Importantly there are various other types of claim which may be brought without any qualifying period. If you possess a genuine unfair dismissal case and have been employed by your employer for more than 2 years then you may be able to claim … 1,499 posts. If you are currently subscribed to receive any of our communications, please manage your preferences here. The first is that the reason for dismissal was not a genuine redundancy situation, ie. Where an individual asserts a relevant statutory right, or raises a claim to enforce a relevant statutory right then any dismissal for that reason will be unfair irrespective of length of service. It is therefore true that an employee can’t take a claim for … Although it’s referred to as a “dismissal” in law, it is in practical terms a resignation. Given that unfair dismissal is one of the better known and frequently invoked employment rights, it is often at the forefront of employers' minds when considering dismissal. To speak to a qualified employment solicitor at Springhouse Solicitors, call one of our offices, email us or use our web form…. Where an employee has made a "protected disclosure" and is dismissed because they made that disclosure, they can claim unfair dismissal irrespective of length of service. Therefore they cannot bring a claim in the Employment Tribunal for unfair dismissal. The following are the key exceptions which arise most frequently in practice and should be borne in mind: Dismissals which take place for a discriminatory reason will be actionable irrespective of length of service. Whilst an employee with less than two years’ service cannot claim ordinary unfair dismissal, other types of claims can still be brought regardless of their length of service. Firstly looking at a fair dismissal: a dismissal can be fair for a number of reasons provided the reason fits under … That’s because employees only gain statutory protection … Our employment law fact card is full of useful information for employers. Employers should always keep an appropriate paper trail in order to demonstrate that the reason for dismissal was not unlawful. However, if an employee can show that they … Wrongful Dismissal Under 2 years. You can also adjust your content preferences at any time by adjusting your interests below and clicking submit. A constructive dismissal is where you are forced to resign in response to your employer’s conduct, which has made your position untenable. Trade Union activities, … for making a protected disclosure, refusing Sunday working (shop or betting workers), asserting rights under the Working Time Regulations or National Minimum Wage Regulations, performing functions as an occupational pension trustee or an employee representative on a TUPE transfer or collective redundancy, blacklisting (in respect of trade union membership), an employer’s duties under the auto-enrolment pension regime or the contravention of those duties, status as a part-time or fixed-term employee, trade union membership (or non-membership) or participation in trade union activities or protected industrial action, breach of an exclusivity clause in a zero hours contract. Where an employee has been designated to carry out activities in connection with preventing or reducing risks to health and safety at work, or where the individual is the workplace health and safety representative or member of a workplace safety committee, or is an employee who has raised health and safety issues with the employer, who has left or stays away from a dangerous workplace or who has taken action to prevent danger any dismissal relating to the employee carrying out these activities is automatically unfair and no qualifying period is required to bring an unfair dismissal claim. Phunk. Morton Fraser LLP is authorised and regulated by the Financial Conduct Authority. ... No one has said anything about a legal case in the replies just explained that under two years … The following questions, answers and case studies will be of interest to employers and employees under … Given this complex approach to deciding ordinary cases, an employee may find themselves having to produce a lot of evidence and presenting a lot of different arguments to prove their case. These include (but are not limited to) asserting rights under the Working Time Regulations (such as the right to statutory holiday or rest breaks), rights conferred under the Transfer of Undertaking (Protection of Employment) Regulations 2006 and asserting that an unlawful deduction from pay has been made. Otherwise, the time limit is applied extremely strictly by employment tribunals. As the name suggests, once they have satisfied a tribunal that this was the case, the dismissal will automatically be deemed to be unfair. An employee is protected from unfair dismissal after two years of continuous service. If an individual can show that they were automatically unfairly dismissed for a reason related to whistleblowing or health and safety, a further advantage is that the usual compensation cap for unfair dismissal does not apply. We found that our clients can have contrasting assumptions or attitudes about dismissing an employee … Therefore, although the employee may not be able to claim unfair dismissal, if they have less than the qualifying service, they could claim that their dismissal was discriminatory. An employee does not have protection from unfair dismissal until they have been continuously employed by the employer for 2 years or more. If employers do have contractual dismissal processes then it is worthwhile considering making it non-contractual or adding a section to the effect that the rules will not apply during the first two years of employment in order to avoid this risk. PRE EMPLOYMENT CHECKS An employer's first obligation is to check that all potential employees have the right to work in the UK. The content of this webpage is for information only and is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. … As with much employment legislation, the devil is in the detail when it comes to claiming automatic unfair dismissal. My … This site uses JavaScript to make some controls and types of content available. Employers are aware of this deadline and will often work to terminate an employment contact before the two year anniversary in order to reduce their litigation risk. However, there are significant exceptions to the general rule on qualifying service and there are other claims linked to dismissal which have no qualifying service requirement (such as a claim that the dismissal was discriminatory). If an employee is a trade union representative or has taken part in trade union activities, and dismissal is for that reason, then it will be unfair regardless of the individual's length of service. These considerations will not apply in automatic unfair dismissal cases. However, there are some important exceptions to the so-called “two year rule” which can be extremely helpful for individuals who might otherwise have no means of redress against their ex-employer. There's a common misconception amongst employers when dismissing an employee who does not have the qualifying one year of service required, in order to bring an ordinary unfair dismissal claim. If any of these apply, then an individual can usually bring an unfair dismissal claim without having to show that they have worked the required two years’ of service. If the employee started their job prior to 6 April 2012 then only one years’ of continuous service is needed. It usually means the same as being sacked or fired. What unfair dismissal claims don’t need 2 years’ service? Even where an employer can show it had potentially fair reasoning for the dismissal from work, a tribunal will then go on to consider if dismissing the employee was a fair action or not. pregnancy, childbirth or statutory parental leave rights, whistleblowing i.e. 126 months. This often leads employers to dispense with their usual disciplinary, capability and redundancy procedures when dealing with the dismissal of an employee with less than two years' service. This applies to all our services from the straightforward to the more complex. This makes it significantly easier for an individual to win the case against their ex-employer. Many employers are aware of this. It is a common misconception amongst employers that dismissing an employee who does not have two years of service will mean that they are "safe" from an employment tribunal claim. If the reason for dismissal doesn’t fall under one of the above categories, the dismissal could potentially be considered unfair… A dismissal is when an employer ends an employee's contract. The assumption is often made that if the qualifying service requirement isn't met then there is no risk of a claim arising from the dismissal. However, the cap applies to all other types of automatic unfair dismissal claim. The Court of Appeal has decided that employees dismissed in connection with a transfer of an undertaking must have 2 years' service before they can bring a claim for unfair dismissal. Individual to win the case against their ex-employer at Springhouse Solicitors, call one of our offices, us! By adjusting your interests below and clicking submit membership or non membership of a trade union.... Of breach of contract please manage your preferences here unsubscribe at any time by adjusting your interests below and submit. 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