The 2 year mark is a significant date in any employment relationship. This is because once an employee has 2 years’ continuous service they have the requisite qualifying service to bring an ordinary unfair dismissal claim.
It is important to remember that there are a whole host of other claims, such as discrimination claims, that do not require 2 years’ service. If an employee is dismissed for a discriminatory reason, because they “blew the whistle”, or because they raised a health and safety concern, then their dismissal will be automatically unfair regardless of whether they have attained 2 years’ service.
However, dismissals within the first 2 years due to conduct or performance concerns can usually be relatively straightforward and low risk without having to follow a full disciplinary or performance management procedure. This is the case provided that the dismissal actually takes effect before the critical 2 year mark.
Factors to be Aware of in Dismissal Decisions
Employers should be aware that there are certain circumstances in which an employee’s length of employment will be extended by the statutory minimum notice period (1 week) and this must be factored into any decision to dismiss in the week prior to their 2 year anniversary.
Where an employee is entitled to notice, but is dismissed without notice (or given a payment in lieu of notice), the termination date is extended by 1 week for the purpose of determining the qualifying period for an unfair dismissal claim and certain other claims.
For example, if an employee began employment on 1st September 2016, they will reach 2 years’ continuous service on 31st August 2018. They are entitled to 1 weeks’ notice of dismissal.
- If they are given 1 weeks’ notice on 23rd August 2018 their notice period will start on 24th August 2018 and end on 30th August 2018. They will have been safely dismissed before reaching 2 years’ service.
- If they are given 1 weeks’ notice on 24th August 2018 then their notice period will start on 25th August 2018 and end on 31st August. They will have 2 years’ continuous employment and will be able to bring an unfair dismissal claim.
- If they are dismissed on 24th August 2018 and given a payment in lieu of notice, their termination date is extended by 1 week to 31st August 2018 to give them the qualifying service they need to bring an unfair dismissal.
Gross Misconduct Exception
There is an exception to this rule if an employee is lawfully dismissed for Gross Misconduct and is therefore not entitled to notice. In this case, the termination date is not extended by the statutory 1 week notice period.
However, it is critical that the employee is genuinely guilty of Gross Misconduct and there must be sufficient evidence to establish that this is the case should it be challenged at Employment Tribunal. If an Employment Tribunal found that an employee dismissed in the week before they had 2 years’ service did not commit Gross Misconduct, then the employee would have their termination date extended to give them the service they need to bring an unfair dismissal claim.