A Reminder To All: Dismissal Claims & Qualifying Periods of Employment
- AuthorJoan Casson
Employees are becoming increasingly savvy. They understand that basic procedures generally apply before they can be dismissed from their employment. They are very forthright in insisting those procedures are followed, whether they have just started their job or have been working for their employer for years.
Employees cannot claim unfair dismissal unless they have been continuously employed for two years. However, this two year requirement applies only to dismissals under the general rules of fairness, such as the minimum guidelines set out in the ACAS Code of Practice on Disciplinary and Grievance Procedures. It does not apply to dismissals as a result of the employee blowing the whistle, raising health and safety issues, asserting a statutory right or undertaking other specified acts. Dismissal for these reasons are automatically unfair and do not require any minimum period of employment. Also, employees can claim discrimination on grounds of sex, race, age, disability or other defined protected characteristics or for breach of contract without any minimum period of employment.
It is not too difficult for employees to find fault with the disciplinary process applied to them or to allege their claim falls within the category of breach of contract, automatic unfair dismissal or discrimination. To reduce the risk of such claims from employees who have been employed for a short time, employment contracts should be clear that employers may dismiss during the probationary period in appropriate circumstances and without following the company’s disciplinary or capability procedure. Capability and disciplinary procedures should not be contractual so that employers will not be liable for any minor failures to fully follow their procedures. Employers should also at least consider whether they should apply their capability or disciplinary procedures even if the employee has been employed less than two years.
Employees who have at least had the opportunity to defend themselves in a full disciplinary process may be more likely to feel that they have been dealt with fairly and not pursue matters further despite being unhappy with the outcome. (At least their legal advisers may recognise and advise that the procedure was fair.) Facts may come out during the process indicating that the employee may be able to claim automatic unfair dismissal or discrimination. These allegations should then be investigated and discounted before dismissal is decided. Remaining employees may feel reassured that any problems they might have in the future will be dealt with appropriately and fairly. And it may simply help the employer to become familiar and comfortable with the process so that any future procedures will be handled efficiently, fairly and correctly when the consequences for getting it wrong can be expensive.
Our Employment Law Team can help and advise employers not only with drafting appropriate contracts and procedures, but we can also help guide them through the disciplinary and capability processes when they are required.