The qualifying period for an unfair dismissal claim

When it comes to employment, the sad reality is that not all employees, regardless of how well they did in the interview, will be a good cultural fit for your business or perform the job to an acceptable standard.
 

31st Jul 2018


We regularly receive enquiries from clients about their rights to terminate someone’s employment,  who have been with the business for less than two years, this would be classed as a short service dismissal. When considering a termination of employment or otherwise known as dismissal, before giving advice we check the employee’s length of service, any risks that can be identified along with what dismissal procedures the employer has in place. Employers can and should consider putting in place a probation period of normally between three and six months, this in many circumstances can act as a trial period to monitor the quality of work, conduct, attendance etc. and cultural fit when taking on a new employee.  It puts the employer in an even stronger position to dismiss the employee if they have not met certain standards.
 
In many cases, employees will pass the probationary period with no obvious issues. In the situation of unreconcilable problems arising after the probationary period, a short service dismissal is possible if the employee has less than two years’ continuous service with the business.  However, it is very important to remember that the one-week statutory notice period can contribute to the employee’s length of service if the dismissal is for a reason other than gross misconduct, therefore if the notice period takes the length of service to two years or over you need to be aware that this then gives the employee unfair dismissal protection under employment law.  For this reason it is not good practice to leave matters until the last minute before considering a dismissal, and all meetings and conversations should be documented as evidence to demonstrate, if challenged, that concerns were discussed with the employee.
To put things into perspective we have provided the below example of a case taken to tribunal for unfair dismissal.
 
Wileman v Lancaster & Duke Ltd
 
Wileman was initially employed as a recruitment consultant and after a successful probationary period was promoted to Recruitment Manager. She consistently achieved monthly bonuses. However, despite this success, the company had to speak to her about her offensive behaviour which amounted to bullying and harassment. There were complaints made about her rude and abrasive conduct and she was described as being “quite toxic” and “behaving like a playground bully”.
 
The relationship between her and one of the directors deteriorated and resulted in a verbal final warning. She continued to work for another 4 weeks but during this time had discussions with another employee which led to that employee resigning.  A decision to dismiss her for gross misconduct occurred two days before she achieved two years’ continuous service and was communicated to her in a telephone call.  
 
The Employment Tribunal described the company’s management style as “bordering on feckless”. There were no procedures or policies in place in respect of employment obligations. 

 
The Claimant included the one week's statutory notice under s86(1) ERA in order to obtain two years’ service and therefore the right to unfair dismissal protection.  The Employment Tribunal accepted her service qualified her to bring this claim and found she had been unfairly dismissed.  As no formal dismissal procedure was followed, an uplift of 25% was added to her award.  There was no investigation, disciplinary hearing, representation or appeal offered however, due to her own conduct contributing towards her dismissal, this uplift was removed. 
 
The Respondent appealed this decision to the Employment Appeal Tribunal.  The Claimant had alleged the ability to add the statutory minimum notice of one week would have taken her 'over the line' but the Respondent argued that s86(6) ERA allowed it to dismiss without statutory notice, because of the Claimant's (alleged) gross misconduct.  The Employment Appeal Tribunal agreed with the Respondent and they were successful.
 
From this case you can see that not all dismissals are straight forward, even when they appear to be reasonable. The Respondent (the employer) could have been liable for unfair dismissal if the employee had secured the qualifying service.   
 
When considering a dismissal of an employee, employers are advised to take advice from a HR and employment law professional to ensure they know all their rights and know what they need to do to stay compliant with legislation. At Alcumus PSM our HR experts have many years of experience and have held many HR roles in a variety of industries. We work with our clients to make sure they know all their employment obligations to minimise risk.
 
Since the abolishment of tribunal fees, tribunals have gone up as a whole by 90% in the UK, putting businesses at greater risk. By ensuring all your policies, handbooks and employee contracts are in place and are suited to your business needs, you are ensuring that you remain compliant and are meeting all your legal obligations.
 
For more information on dismissals, speak to a member of the HR Consultancy team who will be able to give you advice before you make any disciplinary decisions.
 
Written by Joanna Dobie, Senior HR Consultant.