As an employee, the amount of time you have been continuously employed by an employer is imperative in determining your employment rights upon dismissal.

If an employee has less than 2 years’ continuous service then an employer can dismiss the employee without the fear that the employee can pursue a claim for ordinary unfair dismissal against them, even if the employer does not have a “potentially fair” reason for the dismissal.

However, employees with less than 2 years’ continuous service often fail to realise that there are alternative routes whereby they can “side-step” the length of service requirement and pursue a claim against their employer on dismissal.

Automatic unfair dismissal

Dismissals for certain inadmissible reasons are deemed to be automatically unfair despite the reasonableness of the employer’s decision to dismiss.

Unlike in cases of ordinary unfair dismissal, the majority of cases of automatically unfair dismissal do not require an employee to have a certain length of continuous employment in order to bring a claim for automatically unfair dismissal. This means that it is possible for employees with less than 2 years’ continuous service to bring a claim against their employer for automatic unfair dismissal if they have been dismissed for an inadmissible reason.

The inadmissible reasons that result in a dismissal being deemed as automatically unfair are set out in the Employment Rights Act 1996 and include but are not limited to the following:

  • dismissals relating to carrying out jury service;

  • dismissals relating to pregnancy, childbirth, statutory maternity leave, statutory paternity leave, statutory adoption leave, parental leave, shared prenatal leave, parental bereavement leave, time off for attending antenatal and adoption appointments or time off for dependents;

  • dismissals for health and safety reasons;

  • dismissals for reasons connected with rights under the Working Time Regulations 1998;

  • dismissals for performing functions as an employee representative on a TUPE transfer or collective redundancy;

  • dismissals for making a protected disclosure;

  • dismissals related to the national minimum wage;

  • dismissals in connection with requesting to work flexibly.

If the employment tribunal decides that an employee has been unfairly dismissed by their employer, the employee can expect to be awarded compensation.

Wrongful dismissal

An employee with less than 2 years’ continuous service may also claim for wrongful dismissal if their employer has breached the express or implied terms of their employment contract in dismissing them and the breach consequently caused the employee loss.

Wrongful dismissal claims are often brought due to an employer dismissing an employee in breach of their notice period.

An employee’s notice period may be determined by the following:

  • an express term in the employment contract;

  • an implied term of the employment contract (common law provides that “reasonable” notice is to be given);

  • or by statute (an employee with less than 2 years’ continuous service is entitled to no less than one week’s notice).

Therefore, if an employment contract fails to express a notice period or the notice period expressed is less than the period stipulated by statute, the statutory minimum notice period will be implied.

Alternatively, common law provides that reasonable notice must be given and, therefore, the courts can imply a longer period of notice than that required by statute, based on the circumstances of the individual case.

If an employer dismisses an employee without providing sufficient notice then they may be found to be in breach of the employment contract and an employee may subsequently bring a claim against them for wrongful dismissal. However, an employer may not be found liable for wrongful dismissal if due to the conduct of the employee, the employer was entitled to dismiss them with immediate effect (otherwise known as summary dismissal) or if there is a clause in the employment contract which provides for a non-discretionary (or discretionary if the discretion is exercised) payment in lieu of notice.

An employee may have a claim for damages if the employer breached the employment contract in dismissing them and caused the employee loss as a result. The claim may be pursued either in the employment tribunal or the civil courts for breach of contract.

If you would like advice on any employment law matter, whether as an employee or employer, then please contact our expert employment law and HR team on 0845 287 0939 or submit your enquiry online.