Can I Sack Someone If They’ve Been Employed For Under Two Years?

You may be aware that if you sack an employee, they only have the right to claim unfair dismissal if they’ve been employed for more than 2 years.  This minimum length of service is known as the qualifying period.

This means that it’s relatively safe to sack someone who has not yet been employed for the qualifying period, even if you don’t have a fair reason for dismissing them.  The purpose of this minimum length of service is to ensure employers have sufficient time to assess the suitability of an employee.

However, there are some pitfalls to avoid.

Although an employee with less than 2 years’ service can’t claim ordinary unfair dismissal, there are nevertheless some types of claim that they can still bring, irrespective of how long they’ve been employed.

Automatically unfair dismissals

There are certain types of dismissals that are automatically unfair.  This means that the employee does not 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:-

• They asked to be released for jury service;
• The employee is pregnant or has recently given birth;
• The employee was 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 your reasons for dismissal in order to protect yourself against any unfounded allegations. For example, if your decision to dismiss coincides with the employee becoming pregnant, there is a risk that the employee will perceive the decision as pregnancy related even if it isn’t. This could lead to you having to defend an unwelcome employment tribunal claim

Other types of employment right that apply to all staff irrespective of their length of service

As an employer, the law does not allow you to discriminate against an employee on the grounds of any protected characteristic, such as race, gender, or religion.  A full list of protected characteristics can be found here.

To state the obvious, if you were to dismiss someone because of their skin colour, the employee would be able to claim compensation for discrimination, even if they’ve only recently started their job.  Indeed, they could claim compensation even if they haven’t started work yet.

There are however some less obvious ways that you could unintentionally discriminate against a member of staff.

For example, you may decide to sack someone because of their sickness record.  If they have been employed for less than 2 years, they can’t claim unfair dismissal.

However, they may claim that the reason they had so much time off sick was that they had a disability and that, by sacking them, you have discriminated against them on the grounds of their disability. This would potentially be disability discrimination.

You should tread carefully if you’re considering dismissing someone on the grounds of sickness.  Ideally obtain an occupational health report first.

A few years ago, I dealt with a case where an employer had sacked an employee because she complained too much.  The employee had been employed for less than 2 years and could not therefore claim ordinary unfair dismissal.

However, one of the complaints the employee 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.

A few other things to bear in mind

All staff have rights set out in the employment contract, irrespective of their length of service.

For example, they have the right to a minimum notice period. They would also be entitled to all of their contractual pay up to the termination date, including a payment for any untaken holiday entitlement.

Always check the employment contract before dismissing someone. We would also recommend that you speak to an employment solicitor to be on the safe side.

In conclusion

Dismissing staff can be a risky business.  Although those risks are significantly reduced if the employee has less than 2 years’ service, there are still plenty of pitfalls to avoid.