Dismissal before a year’s service

Many employers believe that when dismissing an employee with less than a
year’s service there is no need to follow procedures or worry about unfair
dismissal. This is not necessarily so. This article examines where such a
dismissal could give rise to such a claim, and where the employee could recover
more than notice pay for breach of contract.

Beware – there is no qualifying period for unfair dismissal, for example,
where an employee is dismissed for:

– Asserting a statutory right, including victimisation claims in sex, race
or disability discrimination
– Being pregnant or giving birth
– Certain health and safety activities
– Qualifying for or seeking to rely on the minimum wage
– Being a part-time worker
– Activities as an elected employee representative or candidate for that role
– Taking part in an employee representatives election for Tupe/trade union
– Spent convictions
– Taking leave for family reasons in emergencies
– Making a protected disclosure under whistleblowing legislation
– A medical suspension requirement or recommendation (qualifying period here
one month).

This is a not an exhaustive list.

It is also easy to make mistakes in calculating an employee’s length of
service for unfair dismissal purposes, such as failing to:

– Add on the week’s statutory minimum notice to the termination date in
calculating the "effective date of termination" where the employment
ends summarily but gross misconduct has not occurred
– Count contractually agreed periods of prior service
– Count previous service where a Tupe transfer has taken place
– Recognise that employers who deliberately break continuity but agree with the
employee that he or she should start work at some predetermined date in the
future could unintentionally be giving eligibility for unfair dismissal.

Contractual damages

Some employees with coming up to a year’s service have also recently been
able to claim contractual damages for the loss of a chance to claim unfair
dismissal, in circumstances where the contractual notice period would have
taken them over a year and the employer was contractually obliged to follow,
for example, a disciplinary procedure, but did not. A tribunal recently awarded
an employee contractual damages for loss of earnings (beyond the payment in
lieu) and even for loss of statutory rights.

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