Dismissing Employees with Under 2 Years’ Service
It is often assumed that dismissing employees that have under 2 years’ service is considerably more straightforward than when dealing with - and dismissing - an employee who has worked for you for 2 years or more. This is because, ordinarily, employees only gain the right to claim for example unfair dismissal, constructive dismissal and statutory redundancy pay after accruing 2 years’ continuous service. Therefore, many employers believe that they are ‘safe’ from an employment tribunal claim and as a result, this leads them in to thinking that they do not need to carry out their usual disciplinary, capability or redundancy procedures for employees with under 2 years’ service. However, we here at rradar would advise that even where you have employees with under 2 years’ service, you should always err on the side of caution.
Claims which do not rely on length of service.
Irrespective of their length of service, employees can bring claims in respect of dismissals where the dismissal was related to:
discrimination (including victimisation dismissals),
protected disclosures made by the employee, i.e., ‘Whistleblowing’
the employee’s trade union membership or activities, or
the employee’s actions in asserting a statutory right, e.g., right to holiday pay, right to national minimum wage, right to a written statement of employment,
as well as various other lesser-known and rarely used areas of protection.
Another main claim that can be brought by employees under 2 years’ service and that employers often forget is one for wrongful dismissal/breach of contract.
A common misunderstanding by employers is that this type of claim is only brought where an employee is not paid their notice pay and so paying it will put a stop to that type of claim.
However, this is not necessarily the case because wrongful dismissal can also be claimed where an employee argues that an employer has breached their disciplinary procedure by not carrying it out, i.e.
the employer did not carry out an investigation or call them in to an investigation meeting,
did not go on to hold a disciplinary hearing,
did not give the right to appeal/hold an appeal hearing for example.
Essentially if an employee with under 2 years’ service can prove that the above was not carried out in line with the procedure in place, they can claim loss of earnings in addition to notice pay for the period of time it would have taken the employer to have carried out a proper disciplinary/dismissal process and dismissed them properly.
In addition, if an employee is dismissed for gross misconduct and not paid their notice pay, it is for the employer to prove that the allegations were essentially true, and that the employee had acted in breach of contract (by committing gross misconduct) – a full investigation will be key to defending a wrongful dismissal claim.
In a redundancy situation, it is also risky to select employees with less than 2 years’ service, on the basis that you would not have to pay them redundancy pay, as such a policy could indirectly discriminate against younger employees, who are potentially more likely to have less service.
This means that it is always wise as an employer, and certainly advised by us here at rradar, to go through a thorough dismissal procedure in order to provide a defence to any such claim mentioned above.
rradar’s best practice procedure advice when dismissing an employee with less than 2 years’ service is as follows:
Tread carefully and cautiously, as you would with any of your employees, regardless of their length of service.
For example, if there is an issue concerning conduct, we would advise, regardless of length of service that you:
investigate the allegations/concerns, and
discuss them with the employee in question at an initial investigation meeting, giving them an opportunity to respond.
If it is found that there is a disciplinary case to answer, invite them to a disciplinary meeting in the usual way by giving them reasonable notice of the meeting and notice of the allegations that will be considered and discussed at the meeting. You should also inform them of the fact that they are at risk of being dismissed (if applicable).
You should also provide them with a right to be accompanied at this meeting, explaining that they or their representative will be given an opportunity to respond.
Following the meeting, carry out any necessary further investigations, as this demonstrates that you have listened to their response and are now acting on it. Where no further investigations are needed and you have sufficient evidence to make a final decision, adjourn for a short period of time to demonstrate again that you are considering the situation and did not reach a conclusion before they had a chance to respond.
Where it is not considered appropriate to issue them with a written warning, or other form of disciplinary sanction, you should also notify them of your decision to dismiss in writing, providing reasons why and giving them the right to appeal within at least 5 days of your dismissal.
So, all the hallmarks of how you would deal with employees with 2 years or more of service and in line with a best practice disciplinary procedure, i.e., investigation, disciplinary hearing, appeal hearing etc.