Dismissal under 2 years

Can I dismiss an employee who has only been employed by the business  for a few months?

We are often told by clients that they have a member of staff who although they passed their probationary period and  they have been with them for a few months , they are now not happy with their performance or conduct.  Our clients  ask if they can dismiss them without going through the full disciplinary process of a series of warnings. Caution should be exercised but the simple answer is yes, provided it based on performance or conduct and not for a discriminatory reason or they are asserting a statutory right or for a another reason that does not require the 2 year qualifying period.

How Long does someone need to be employed before they have protection from Unfair Dismissal?

An employee does not have protection from unfair dismissal until they have been continuously employed by the employer for 2 years or more. Therefore they cannot bring a claim in the Employment Tribunal for unfair dismissal. However you must always remember that a claim can be brought for another reason such as discrimination.

How do we go about dismissing someone?

To protect the business we always advise that they still follow the ACAS code on conducting a disciplinary and invite the person to a disciplinary meeting by way of a letter,  hold the meeting and then make a decision which should be communicated in writing. Both of the letters should clearly set out the reason for the dismissal. Many businesses prefer not to go through the process of inviting the  employee to a meeting but to just call them and inform them of their decision. If this is the case then at very least the reason should be discussed and then confirmed in writing.

As I stated earlier an employee can bring a claim that does not require the 2 year qualifying period such as discrimination so if there is any issue of discrimination then we would advise that the matter be dealt with more thoroughly and that you adopt the full disciplinary process to prevent any claim at a later date that the dismissal was based on some other ground that does not require 2 years qualifying period.

How much do we need to pay?

If you do decide to dismiss an employee who has been with you for less than 2 years you should check the contract of employment and ensure that you pay them their notice period, any accrued but un-taken holiday pay and any other contractual benefits. If you do not have a contract then it will be 1 weeks pay. If they have been employed for less than 1 month and there is no agreement to the contrary then there is no notice to be given and so no notice pay.

Please feel free to contact Iain Lock at Q&A HR if you have any questions concerning this or any other employment law issue. 01920 463777 ilock@qandalaw.co.uk

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