Dismissing short-serving employees

The Employment Rights Act 1996 (ERA) provides five potentially fair reasons for dismissal, (capability or qualifications; misconduct; redundancy; statutory restriction; or ‘another substantial reason’).

However, to bring an unfair dismissal claim, an employee normally has to have been employed for the qualifying period: 2 years in most of the UK, 1 year in Northern Ireland.

Before that time elapses, it is considerably easier and less risky to dismiss an employee.

Nevertheless, it is always advisable to follow a robust dismissal procedure, even for employees employed for less than 2 years, not least since the legislation contains some important exceptions to this rule, including some classified as ‘automatically unfair reasons’.

For example, if you dismiss an employee specifically because he/she asserted a statutory right or because he/she blew the whistle on wrongdoing at the business, that dismissal decision is automatically unfair. An employee does not need to have been employed for the qualifying period to bring these types of claims against you. An employee also does not need any qualifying length of service to bring a discrimination claim against you.

It is not uncommon for short term employees who have been dismissed to raise these types of allegation as a counter to an employer’s dismissal decision. Those employers who have followed a robust dismissal process will be able to demonstrate rapidly and cost effectively, that these claims are unfounded. 

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