This means that it’s relatively safe for your employer to sack you if you have not yet been employed for the qualifying period, even if they don’t have a fair reason for dismissing you. The purpose of this minimum length of service is to ensure your employer has sufficient time to assess your suitability as an employee.
In turn, this means that you’re much less likely to be offered a settlement agreement if you started your job less than 2 years ago.
However, although you can’t claim ordinary unfair dismissal if you’ve been employed for under 2 years, there are nevertheless some types of claim that you can still bring, irrespective of how long you’ve been employed.
Automatically unfair dismissals
There are certain types of dismissals that are automatically unfair. This means that you don’t have to have worked for 2 years in order to make a claim.
Examples include employees who are dismissed for any of the following reasons:-
- Asking to be released for jury service;
- Pregnancy or a recent child birth;
- You were intending to take action to enforce a statutory right, such as the right to be paid the National Minimum Wage.
A full list of dismissals that are deemed automatically unfair can be found in the Employment Act 1996.
You should keep careful records of events leading to your dismissal in case any of the automatically unfair reasons apply.
For example, if your employer’s decision to dismiss you coincides with you becoming pregnant, you may have cause to claim compensation in an employment tribunal or preferably agree a settlement.
Other types of employment right that apply to all staff irrespective of their length of service
Your employer is not allowed to treat you less favourably on the grounds of any protected characteristic, such as race, gender, or religion. A full list of protected characteristics can be found here.
For example, if you are dismissed because of your nationality, you would be able to claim compensation for discrimination, even if you’ve only recently started your job. Indeed, you could claim compensation even if you haven’t started work yet.
There are however some less obvious ways that your employer could unintentionally discriminate against you.
For example, they may decide to sack you because of your sickness record. If you have been employed for less than 2 years, you can’t claim unfair dismissal. However, you may be able to show that the reason you had so much time off sick was that you have a disability and that, by sacking you, the have discriminated against you on the grounds of that disability. This would potentially be disability discrimination.
Your employer should tread carefully if they’re considering dismissing you on the grounds of sickness. Ideally they should obtain an occupational health report first.
I once represented a client who had been sacked because she complained too much. She had been employed for less than 2 years and could not therefore claim ordinary unfair dismissal.
However, one of the complaints she raised was that she was being treated less favourably because she is a woman. Although that complaint was groundless, the decision to dismiss her on the basis of her complaint amounted to victimisation. She recovered compensation for lost earnings and injury to feelings.
If you believe that you’re the victim of discrimination, you may want to raise a grievance. In turn, this may help you to get a settlement agreement. The amount you should accept in a settlement agreement depends on a number of factors but you you should consider calculations including your lost earnings and injury to feelings.
A few other things to bear in mind
As an employee, you have certain rights set out in your employment contract, irrespective of their length of service.
For example, you have the right to a minimum notice period. You are also entitled to all of your contractual pay up to the termination date, including a payment for any untaken holiday entitlement.
Can you ask for a settlement agreement?
If you’ve been employed for under 2 years, your employer will (probably) be aware that the risk of you bringing a claim against them is greatly reduced. However, some employers may offer a settlement agreement anyway, just to be on the safe side.
When negotiating a settlement agreement, consider what incentive there is for your employer to pay you more money. For example, do you have any legal claim against them? If not, you could negotiate on the basis of good will.
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If you have received an offer of a settlement agreement, you will need to make sure you receive legal advice on it.
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