If your business has recently employed an individual who is performing below expectations, what are your options? Can you dismiss them without following the typical disciplinary process? Are there risks associated with doing so? Here, we examine the legal implications of dismissing an employee within 24 months of joining the business.
Dismissing an Employee | Key Procedures
As an employee usually requires two years’ service in order to file an unfair dismissal claim, employers can often dismiss them without warning within their first 24 months on the job. Reasons for dismissal can be for poor performance, conduct, capability or SOSR. However, there are certain situations in which an employee can lodge an unfair dismissal claim without having completed two years on the job
Unfair Dismissal Exceptions
An employee with less than two years’ service could claim unfair dismissal in the following circumstances.
- The dismissal can be attributed to a “protected characteristic,” such as race, religious belief, gender, or sexual orientation
- The dismissal can be attributed to trade union membership
- The dismissal can be attributed to a breach of health and safety
- The dismissal can be attributed to pregnancy
- The dismissal can be attributed to “whistleblowing”
It is important to note that the employer does not dictate how the dismissal is explained or justified. Though they may have legitimately dismissed an employee for a fair reason, that employee could still bring an unfair dismissal case for one of the reasons listed above. If the employer cannot present sufficient evidence to convince the employment tribunal that the legitimate reason for dismissal was a fair reason, they may face a finding of unfair dismissal.
Procedure as a Form of Evidence
Organisations typically introduce procedures as a means of ensuring that actions taken by employees and management are within the scope of the law. By designing and enforcing certain protocols, businesses offer themselves an insurance policy – a well-designed procedure will help guarantee that the business is acting in a legally responsible manner. Essentially, procedure becomes a form of evidence, a means of demonstrating that nothing untoward has taken place.
Consequently, any business looking to circumnavigate normal procedures should consider their position very carefully. If the dismissal could be construed as having taken place for a reason other than a fair reason, such a dismissal could be a risky move. By skipping normal procedures, an employer could find themselves without the evidence and information required to justify their decision, leaving themselves with considerable problems should the case go to an employment tribunal. They could also face an uplift in any award made against them due to their failure to comply with the ACAS code.
Contractual Obligations When Dismissing an Employee
Finally, it’s also important to note that a business’ own employee contracts could prevent an employer from dismissing an employee with less than 2 years’ service without following their own disciplinary procedure. In such a case, an employer could be targeted for “breach of contract.” A simple means of avoiding this involves enshrining the employer’s right to depart from their own disciplinary procedure when dealing with employees who have less than 2 years’ service.
While businesses are within their legal rights when dismissing an employee with less than 24 months of service without following a normal procedure, there are risks associated with doing so. Your organisation should be aware that an unfair dismissal claim could still be filed, even though the employee dismissed does not have 24 months’ service, should the dismissal be alleged as having been for one of the reasons detailed above. In many ways, sidestepping normal procedures opens a business up to considerable risk. If such a dismissal is to take place, the business needs to ensure that it is able to produce considerable evidence to prove that the reason for dismissal was a fair one.