If you think there has been an unfair dismissal under 2 years, then the information in this article is for you.
You may have heard about the “2-year rule,” but do not fully understand what it means. If you have been dismissed from your employment (or are considering resigning) and you do not have 2-years of continuous service as an employee, then please consider the information below carefully.
To claim unfair dismissal (where you have been dismissed) or constructive unfair dismissal (where you resign) there is a “qualifying period,” where you must have been continuously employed for at least 2-years. This means there is no unfair dismissal under 2 years, but there may be some other options.
We speak to lots of people that have been dismissed with less than 2-years’ service and often, their options are limited. We appreciate this can be a difficult pill to swallow.
However, there are exceptions to the 2-year rule and claims that do not have any qualifying service. We cover the most common situations we see below, so you can consider if you have any recourse, even if you have been dismissed with less than 2-years’ service.
Unfair Dismissal Under 2 Years – COMMON EXCEPTIONS
Discrimination / Harassment
Discrimination claims do not have a qualifying service.
For example, if you were dismissed because of a protected characteristic (age, disability, gender reassignment, marriage/civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation) then such a claim does not require 2 years’ service.
If you suffered other forms of discrimination/harassment at work (not dismissal) then these claims also do not require 2-years’ service.
They do have short time limits though, (often 3 calendar months less 1-day from the act complained of). In most cases, you must complete an Early Acas Notification Form within the 3 months less 1-day time limit before making an employment tribunal claim.
However, proving you were dismissed because of a protected characteristic is often difficult.
We highlight disability discrimination separately because there are certain disability claims that do not apply to the other protected characteristics and because it is the most frequent type of discrimination that we come across.
- If you are dismissed because of something linked to your disability (such as absences or an impact on your performance) then this may give rise to a claim of “discrimination arising from disability.”Your employer must know (or ought to know) about the disability.
- If there are elements of your job that are putting you at a disadvantage because of your disability, then your employer may be under a duty to make reasonable adjustments to alleviate that disadvantage. Your employer must know (or ought to know) about the disability and the relevant disadvantage.
To give an example, an employer has a disabled employee struggling with their workload, but they do not make any adjustments and dismiss them because of their performance. The employer believes there is no recourse because the employee has less than 2-years’ service and is still in their probation, so they only pay them their 1-weeks’ notice. However, the employee can argue that the employer failed to make reasonable adjustments and that the dismissal was disability discrimination, specifically discrimination arising from disability, where the length of service is irrelevant.
A victimisation claim does not require 2-years’ service.
It is victimisation if an employer subjects a worker to a “detriment” because the worker has done (or the employer believes the worker has done or may do) a “protected act.”
The worker does not need to have a particular characteristic to be protected.
The detriment must be linked to a protected act.
A Protected Act is any of the following:
- Making a claim under the Equality Act 2010.
- Giving evidence or information in connection with a claim brought under the Equality Act 2010.
- Doing anything which is related to the provisions of the Equality Act 2010.
- Making an allegation (whether or not express) that another person has done something in breach of the Equality Act 2010.
- Making or seeking a ‘relevant pay disclosure’ to or from a colleague (including a former colleague).
Example – A common example is someone alleging that they have been discriminated against at work.
If a worker raises a grievance because they believe they have been discriminated against (this would be a protected act). If the employer then subjects them to a detriment (such as dismissal) because of the protected act, this would be a classic example of victimisation.
A whistleblowing claim does not require 2 years’ service.
A whistleblowing claim is like a victimisation claim, because it relates to being subjected to a detriment because of something the worker did that affords protection, in this case a “protected disclosure.”
The purpose of the legislation is to protect workers reporting malpractices in the workplace.
A disclosure that qualifies for protection is any disclosure of information, that in the reasonable belief of the worker making the disclosure, is that the disclosure was in the public interest, and tends to show one or more of:
- that a criminal offence has been committed, is being committed or is likely to be committed,
- that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
- that a miscarriage of justice has occurred, is occurring or is likely to occur,
- that the health or safety of any individual has been, is being or is likely to be endangered,
- that the environment has been, is being or is likely to be damaged, or
- that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.
If you were dismissed or subjected to some other detriment, because you made a protected disclosure, then you may have a whistleblowing claim, that does not require 2-years’ service.
Example – You work for a building company at different sites. You believe the way the sites are being managed is unsafe with certain building regulations being ignored, you think this is dangerous to staff and the public. You decide to report this to management, you send them photographs and explain what is happening (this is likely to be a protected disclosure). At this point, everything at work has been fine, but then you notice some issues. Only a week after making your protected disclosure, you receive a call from management and you are dismissed, you have only worked there 6 months.
This may be an example of an “automatic unfair dismissal” which does not require 2 years’ service (there are different forms of automatic unfair dismissal, which are set out below).
Automatic Unfair Dismissal – Cases with no qualifying period
An automatic unfair dismissal is where the principal reason for the dismissal was one of the “prohibited” reasons under the Employment Right Act 1996.
We have listed the prohibited reasons below:
Reason for dismissal:
- Family reasons. Unfair dismissal for reasons connected with pregnancy, childbirth, or statutory maternity, paternity, adoption, parental leave, shared parental leave or time off for dependents.
- Health and safety. Unfair dismissal for a health and safety reason.
- Sunday working. Unfair dismissal of a shop or betting worker for refusing to work on a Sunday.
- Working time. Unfair dismissal for a reason connected with rights under the Working Time Regulations 1998 (SI 1998/1833) (WTR).
- Pensions trustees. Unfair dismissal for performing functions as an occupational pensions trustee.
- Employee representatives. Unfair dismissal for performing functions as an employee representative on a TUPE transfer or collective redundancy.
- Whistleblowing. Unfair dismissal for making a protected disclosure.
- Asserting a statutory right. Unfair dismissal for asserting a statutory right listed in section 104(4) of ERA 1996.
- Flexible working requests. Unfair dismissal in connection with an application for flexible working.
- Minimum wage. Unfair dismissal related to the national minimum wage (NMW).
- Working tax credits. Unfair dismissal for enforcing rights in relation to working tax credit.
- Blacklisting. Unfair dismissal in connection with a prohibited list under the Employment Relations Act 1999 (Blacklists) Regulations 2010 (SI 2010/493).
- Time off for training. Unfair dismissal in connection with time off for study and training request rights.
- Jury service. Unfair dismissal in connection with carrying out jury service.
- Pensions auto-enrolment. Unfair dismissal of a jobholder if the reason for dismissal was the employer’s duties under the auto-enrolment regime or its contravention of those duties.
- I&C activities. Unfair dismissal in connection with information and consultation agreement activities.
- EWCs. Unfair dismissal in connection with European works council activities.
- Part-time status. Unfair dismissal related to status as a part-time worker.
- Fixed-term status. Unfair dismissal related to status as a fixed-term employee.
- Union recognition. Unfair dismissal in connection with trade union recognition.
- Union membership and activities. Unfair dismissal for trade union membership or non-membership, or participation in trade union activities.
- Right to be accompanied. Unfair dismissal in connection with exercising the right to be accompanied to a disciplinary or grievance hearing or to a meeting under the statutory retirement procedure.
- Industrial action. Unfair dismissal for taking part in protected industrial action.
- Agency workers. Unfair dismissal in connection with exercising prescribed rights as an agency worker.
- Redundancy selection. Unfair dismissal following selection for redundancy on any of the grounds listed above.
- Zero hours contracts. Unfair dismissal in connection with the breach of an exclusivity term in a zero hours contract.
Here are some other exceptions to the qualifying period (2 years) under section 108(1) of the ERA 1996:
- If the employee is dismissed in circumstances where they would qualify for paid suspension on medical grounds, the qualifying period is only one month .
- In cases where the reason or principal reason for the dismissal “is, or relates to, the employee’s political opinions or affiliation.” This does not mean that a dismissal for political affiliations is automatically unfair; it is simply a relaxation of the requirement for qualifying service.
- In cases where the reason or principal reason for dismissal “is, or is connected with” the employee’s membership of the Reserve Forces, and the effective date of termination falls after 1 October 2014. This does not mean that a dismissal in connection with the employee’s reservist duties is automatically unfair; it is simply a relaxation of the requirement for qualifying service.
Other Key Points
Some other key points are:
- If you are dismissed with less than 2-years service, you should check you received (or going to receive) all other entitlements, such as your notice pay, holiday pay and any other payments that may apply (such as expenses, commission, bonus, shares, etc).
- Be mindful of time limits, they are short in employment claims (often 3 calendar months less 1-day from the act complained of). In the vast majority of cases, you must complete an Early Acs Notification form within the 3 months less 1-day time limit before making an employment tribunal claim.
- We have a CALCULATOR on our website that can assist you with time limits.
Where there may be no unfair dismissal under 2 years, there are other options and potential claims.
This blog is for information purposes only. Nothing should be relied upon as a substitute for legal advice and nothing written should be construed as legal advice or perceived as creating a lawyer-client relationship.