Q: Can we dismiss someone easily who doesn’t fit in as he has only been here for just over a year?
A: This one stemmed from a common misconception nowadays amongst employers that they can dismiss at will and relatively easily when an employee has less than 2 years’ service and hence has no unfair dismissal rights. However, whilst it can be done, adopting that carefree approach to it could still be very risky and comes with a big caveat as there are certain instances when length of service is immaterial:
There will automatically be a finding of unfair dismissal against you, if you dismiss anyone of any age or length of service for any of the following reasons:
- taking leave for family reasons including pregnancy, maternity leave and pay, paternity leave and pay, adoption leave and pay, childbirth and parental leave
- taking leave for family emergencies or to care for dependants (even if, as in a case in 2008, the employee knew she would need to take time off to look after her child two weeks in advance, and failed to organise alternative arrangements)
- performing certain health and safety activities
- refusal of Sunday working by shop and betting employees
- performing certain working time activities
- performing certain functions as a trustee of an occupational pension scheme
- performing certain functions as an employee representative under the TUPE or collective redundancies legislation
- making a protected disclosure (i.e. whistleblowing)
- asserting a statutory right
- seeking to exercise the right to be accompanied at a disciplinary or grievance hearing
- taking certain steps under the National Minimum Wage Act 1998
- seeking to exercise the right to flexible working
- holding the status of a part-time worker
- participating in 'protected' industrial action
- performing certain functions in relation to trade union recognition
- participation in trade union membership or activities
- exercising rights under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002
- undertaking jury service
There will also automatically be a finding of unfair dismissal against you if an employee can prove to an Employment Tribunal's satisfaction that you selected him or her for redundancy for any of the above reasons.
These are the main problem areas, although this list is not exhaustive.
So, yes you can of course dismiss - after all you can actually do that at any time if you really want to - it's your business after all! But under 2 years service you need to be careful that a potential claim is not round the corner, for them claiming the dismissal was related to any of the reasons in the list above. If you are considering dismissing anyone who might be able to attribute your action to any of the above causes or if you are in any doubt please seek advice in advance of doing anything you may regret later on.
Also check their contract of employment in advance. Whilst we always draft our contracts to state that the disciplinary procedure is non-contractual and doesn’t have to be followed in the first 2 years of service, some old contracts may still be in place or staff may not have signed their new contract - so find out exactly what t&c’s are they working under and whether the disciplinary procedure is actually contractual and in place from day 1. You may still have to follow your disciplinary procedure if it’s contractual and or applies from day one, otherwise there would be a contractual breach. This demonstrates why it’s so important to have the right paperwork and clauses, policies and procedures in place and on file to support what you want to do.
However, to avoid a potential unfair dismissal claim from staff with over 2 years service you should always definitely follow a fair procedure and make a decision that is reasonable in all the circumstances.
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