As most employers are aware employees with less than two years’ continuous employment don’t generally have a right to bring a claim for unfair dismissal. But employers should not rely on this to dismiss without always checking that the reason for the dismissal is not unlawfully discriminatory and/or that the employee’s dismissal would not be “automatically unfair.” Our article examines the ‘2 year rule’ and looks at when 2 years is not actually 2 years….
As most employers are aware employees with less than two years’ continuous employment don’t generally have a right to bring a claim for unfair dismissal. But employers should not rely on this to dismiss without always checking that the reason for the dismissal is not unlawfully discriminatory and/or that the employee’s dismissal would not be “automatically unfair” (see the list below.)
Unlawful discrimination concerns a dismissal based on one of 9 ‘protected characteristics’(PCs) defined in the Equality Act and in some cases not just because the employee has one of the characteristics, but because they are associated with someone who does or because they are incorrectly perceived to have that characteristic.
To try and establish whether an employee is likely to be exempted from the 2 year role we will always ask employers whether the person they’re intending to dismiss has or potentially could have any of the 9 PCs, or in the case of absence issues, whether they are caring for someone who does. The other common way to get around the 2 year rule is for the employee to claim they were dismissed because of making a ‘protected disclosure’ and so we ask about that too.
Some employers leave taking a decision on someone’s future until the last breath of the 2 year employment period. Under statutory notice provisions ‘2 years’ often takes place at 103 weeks, not 104 and so an employer who thinks he’s in time with a last minute dismissal may be in for a shock.
Of course if you are considering dismissal of an employee the safest course will always be to get advice first!
The list of situations where a dismissal would be considered “automatically unfair” is a long one. It includes:
- dismissal for various union-related reasons or reasons connected to participation in or the threat of industrial action
- dismissal for the assertion of a statutory right, e.g. the right to receive a written statement of particulars of employment or not to have unlawful deductions made from their wages
- dismissal for a pregnancy or maternity-related reason
- dismissal for a health and safety-related reason, e.g. where the employee brought to the attention of their employer a concern over a risk to health and safety
- dismissal for a reason connected with the employee’s assertion of their rights under the national minimum wage (NMW) and national living wage (NLW) legislation
- dismissal for a reason connected with the employee’s assertion of their rights, or their refusal to forgo a right, under the Working Time Regulations 1998, e.g. the right to refuse to work on average more than 48 hours per week
- dismissal for a reason connected with an employee’s performance as an employee representative,
- dismissal for a reason connected with a protected disclosure under the whistleblowing legislation
- dismissal because the employee exercised, or sought to exercise, a statutory right to be accompanied or because the employee accompanied, or sought to accompany, another worker.
- dismissal because the employee took, or sought to take, parental leave, paternity leave, adoption leave, time off to deal with family emergencies involving a dependant or shared parental leave
- dismissal because the employee made, or proposed to make, an application to work flexibly under the statutory right to request a flexible working arrangement
- dismissal because the part-time employee exercised, or sought to exercise, their rights under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000
- dismissal because the fixed-term employee exercised, or sought to exercise, their rights under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002
- a selection for redundancy for a reason which would have been automatically unfair if it had been the reason for dismissal.
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