2 years’ service makes such a difference

Most employers recognise that 2 years’ service is something of a milestone, but exactly why is it so important? Sometimes the difference matters and sometimes it doesn’t.

When I consider this question I cannot help being reminded of Gallipoli! In the First World war it was decided that Gallipoli was crucial military target so as to control a stretch of water (the Dardanelles). Troops were despatched to take Gallipoli in Turkey but when they arrived their instructions were confused and finding it to be a quiet village they failed to realise its importance. They could have taken it without a shot being fired. Instead they retreated. By the time correct instructions had arrived the Turkish troops had arrived and mounted a defence. 140,000 servicemen lost their lives in taking a village that a few days earlier was theirs.

It isn’t quite as serious as that in employment law terms but all too often we find ourselves helping clients with employees that, a few days earlier, they could have dismissed without difficulty. Why? Because those few days earlier they lacked 2 years’ service.

Once an employee has 2 years’ service (effectively one year and 51 weeks’ service, to allow for notice) they have unfair dismissal rights. That means you need to demonstrate a fair reason for dismissal. Otherwise they can claim and award and compensation. There are 5 potentially fair reasons:

  • misconduct, but not for the first occasion unless it is gross misconduct
  • capability, which includes by reason of ill health
  • redundancy where a careful process has to be followed
  • legal reasons, such as expiry of a work permit
  • one of certain exceptional, but substantial, other reasons

Demonstrating any one of these can be a challenge.

Employees with less that 2 years’ service do not have the right to claim unfair dismissal. Therefore unless the reason is itself unfair (such as discrimination, see below) it will usually be safe to dismiss the employee without having to demonstrate, or prove, that reason.

So, for example, if you do not trust the employee who has less than 2 years service, then you can dismiss without having to prove mistrust. If their conduct is someway short of your expectations, you don’t have to explain why. As one barrister put it to me; if you don’t like the colour of the ties an employee wears then you can dismiss for that reason and not need to account for it. I am not sure that is precisely correct, but it illustrates the main point.

The specifically unfair reasons you need to avoid are:

1. Any discriminatory reason that is for a “protected characteristic”; these are:

  • age
  • disability
  • gender reassignment
  • marriage and civil partnership
  • pregnancy and maternity
  • race
  • religion or belief
  • sex
  • sexual orientation
  • association with anyone who has a protected characteristic, such as a disabled child

2. A reason connected to transfer of employment (TUPE)
3. Whistleblowing
4. Trade Union membership
5. Attempting to assert a statutory right

This list is not exhaustive, for example jury service, health and safety and variety of specific issues are also protected. Contact us if in doubt.

If you are dismissing within the 2 years’ service period then it is critically important to know why you are dismissing the employee and check that it is not for a reason that is automatically unfair. We recommend that you always have a meeting with the employee before dismissal. It is better to find out about any obstacle before rather than after dismissing an employee.

Employees are entitled to written reasons for a dismissal if they are pregnant. Sometimes it can be judicious to provide written reasons anyway.

Employees may, of course, claim a different reason from the true reason, if they suspect you of trying to evade one that is automatically unfair.

But for poor conduct, mistrust, incompetence or unreliability don’t allow the clock to tick over to 2 years’ service.

Malcolm Martin FCIPD

Author Human Resource Practice

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