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  • Helen Manson

Is dismissal under 2 years service really that clear cut?


In short, not really.

Although employees with under 2 years service can't claim unfair dismissal, they can bring claims in respect of a number of other dismissals such as discrimination and whistleblowing.

Even employees who don't appear to have grounds for discrimination, may surprise you. The increase in the qualifying period for unfair dismissal from one to two years has led to an increase in creativity amongst claimants and their lawyers.

Dismissal for ill-health absence

Where a relatively new employee develops a poor sickness record, or commences a long-term sickness absence, employers may choose to dismiss without delay.

However, employers need to be absolutely sure the absence isn't related to a disability as the real risk is a claim for disability-related discrimination and/or failure to make reasonable adjustments.

Dismissal for 'poor performance'

It's relatively common for an employer to want to dismiss a short-serving, poor performing employee without following much of a process.

Unfortunately, the employee may then allege the ‘real reason’ for dismissal was something very different. Perhaps the employee has a medical condition that may qualify as a disability or perhaps they uncovered some wrongdoing and was challenging their manager over it.

Choosing not to follow any sort of procedure can put the employer on the back foot in persuading an ET their reason is the real one. This is especially true if there is no underlying evidence of the 'poor performance'.

Our 5 Top Tips:

  • Always seek out the facts before making any decision regarding dismissal. It's tempting just to 'get rid' but this can often put the employer significantly on the back foot in tribunals;

  • Be cautious when calculating length of service - notice periods can be added in some instances which may take the employee over the 2 year mark;

  • Ensure probation review processes are robust and include regular, documented meetings;

  • Ensure employees are aware the firm's standard disciplinary and performance management procedures do not apply during probation; and

  • Have a robust Disciplinary and Performance Management Policy detailing the firm's process regarding poor performance and capability.


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