Unfair dismissal is a scary term for both employees and employers. For employees it’s about job security and being treated fairly, for employers it’s about legal obligations and disputes. One of the most common questions in this scenario is, “Can I claim unfair dismissal if less than 2 years of service?” This article by Darwin Gray’s employment team will break down the unfair dismissal claims for employees with less than 2 years of service.
Understanding Unfair Dismissal
Definition of Unfair Dismissal
Unfair dismissal is when an employee is dismissed from their job in a harsh, unjust or unreasonable manner. In the UK the Employment Rights Act 1996 governs unfair dismissal claims and provides a framework for employees to claim if they think their dismissal was unfair.
Standard Qualifying Period
Usually, an employee must have at least 2 years continuous service with their employer to be able to claim unfair dismissal. This qualifying period is to give employers some flexibility in managing their workforce and to protect employees from arbitrary or unfair dismissal.
Exceptions to the Two-Year Rule
Automatically Unfair Reasons
Some dismissals are automatically unfair regardless of length of service. These include:
- Pregnancy and maternity leave: Dismissing an employee because of pregnancy or for taking maternity leave.
- Whistleblowing: Terminating employment because the employee reported wrongdoing or unethical practices.
- Trade union activities: Dismissing an employee for being a member of a trade union or for participating in union activities.
- Health and safety: Terminating employment because the employee raised health and safety concerns or refused to work in unsafe conditions.
- Discrimination: Dismissing an employee because of a protected characteristic such as age, disability, gender reassignment, race, religion, sex or sexual orientation.
Constructive Dismissal
Constructive dismissal is when an employee resigns because of the employer’s conduct which fundamentally breaches their contract. This can be claimed regardless of length of service if the employer’s actions are serious enough to warrant resignation.
Claiming Unfair Dismissal with Less Than Two Years of Service
Grounds for Making a Claim
Even without the 2-year qualifying period employees can claim unfair dismissal if their termination falls under one of the automatically unfair reasons. And constructive dismissal claims are possible if the employee can show that their resignation was due to significant breaches of their contract by the employer.
Legal Protections
UK employment law provides specific protection for employees in these scenarios. If an employee thinks their dismissal was unfair for any of the above reasons they can claim to an employment tribunal. The tribunal will look at the claim and decide if the dismissal was unfair.
The Role of Employment Tribunals
Employment tribunals are independent bodies that resolve disputes between employers and employees. They consider evidence from both parties and make decisions based on the law. For unfair dismissal claims the tribunal will look at the circumstances of the dismissal, the reasons given by the employer and any relevant legislation.
Frequently Asked Questions (FAQ)
Can I claim unfair dismissal if I have less than 2 years of service?
Yes, you can claim unfair dismissal if your termination is for automatically unfair reasons such as discrimination, pregnancy, whistleblowing or other protected activities. And constructive dismissal claims can be made regardless of length of service.
What is automatically unfair dismissal?
Automatically unfair dismissal means termination for specific reasons that are deemed unfair by law, such as discrimination, pregnancy related reasons, whistleblowing and trade union activities. These do not require the 2-year qualifying period.
What is constructive dismissal?
Constructive dismissal is when an employee resigns because of their employer’s conduct which breaches their contract of employment. This can be claimed regardless of length of service if the breach is serious.
How do I file an unfair dismissal claim?
To claim unfair dismissal, you need to apply to an employment tribunal. This involves filling in a claim form and submitting it to the tribunal who will then list the claim for a hearing.
What evidence do I need for an unfair dismissal claim?
Evidence for an unfair dismissal claim can include employment contracts, letters to the employer, witness statements and any documentation related to the reason for dismissal. The clearer and more comprehensive the evidence the stronger your case.
Conclusion
The question “Can I claim unfair dismissal if less than 2 years of service?” highlights an important aspect of UK employment law. While the standard qualifying period for unfair dismissal is 2 years there are many exceptions. Automatically unfair reasons and constructive dismissal are ways for employees with less than 2 years of service to get justice. Employees and employers need to understand these provisions to navigate unfair dismissal claims effectively.
So, employees need to know their rights and the protections available to them whatever their service. And employers need to comply with the law to avoid claims and a fair workplace.