When an employer client calls up to discuss a potential dismissal, the first question we ask is how long the employee has been with the organisation. Switched-on clients understand that there are two answers that count here – either less than two years or more than two years.
That’s because employees only gain statutory protection against unfair dismissal after accruing two years’ continuous service. Before that point, whilst it’s not quite true to say that you can dismiss with impunity, but it’s certainly much safer. Below, we discuss some of the reasons why you may want to dismiss a short-serving employee, some of the pitfalls, and how to go about it.
Claims which don’t rely on length of service
Irrespective of their length of service, employees can bring claims in respect of dismissals where the dismissal was related to:
• discrimination (including victimisation dismissals),
• protected disclosures made by the employee,
• the employee’s trade union membership or activities, or
• the employee’s actions in asserting a statutory right
as well as various other lesser-known and rarely used areas of protection.
This means that whilst there is no positive obligation to go through a dismissal procedure or to evidence the reasons for the dismissal, it may be wise to do so in order to provide a defence to such a claim.
Dismissal for an act of misconduct
Let’s imagine in this case that an employee has been employed for about a year when he commits a serious act of misconduct – say he punches another worker. In these circumstances, the employer can probably safely dismiss with very little in the way of process. Matters are more complicated if the act of misconduct is less clear-cut. Let’s say some money has gone missing but it’s not quite clear if it’s theft or an accounting issue, and even if it is theft there is another employee who would have had equal opportunity. As a starting point, the employer can dismiss based on mere suspicion – after all, the employee has no right not be unfairly dismissed. But many employers would recognise that they might want to carry out further investigation in these circumstances; they would see that it is in the interests of the business to get to the bottom of the problem.
Dismissal for ill-health absence
Where a relatively new employee develops a poor sickness record, or commences a long-term sickness absence, it is common for thoughts to turn quite quickly to dismissal. If, however, the absences are related to a disability (and, assuming the absences are genuine, in a large majority of such cases there will be a disability involved) the real risk is a claim for disability-related discrimination and/or failure to make reasonable adjustments. The lack of service will not provide any answer to such a claim and, in most cases, the employer will be well-advised to follow a full procedure including seeking occupational health reports and/or other medical advice and giving the employee every opportunity to discuss the concerns and explore potential resolutions. This situation, is therefore at the extreme end of the spectrum, where the fact that the employee has short-service counts for relatively little.
Again, there is no obligation to go through a process here, and the employer may not wish to do so if the question of selection for redundancy is clear-cut. On the other hand, where there are a group of employees performing the same role, the employer may well wish to put them all, including short-serving employees, through a formal selection process in order to demonstrate that the selection of longer-serving employees (perhaps alongside some shorter-serving ones) is justified. It is also worth noting that if an employer regularly dismissed short-serving employees whenever a redundancy situation arose (effectively adopting a ‘last in first out’ approach) this could potentially be challenged as being indirectly discriminatory on grounds of age and/or gender.
When problems arise
It is relatively common to come across a situation where an employer dismisses a short-serving employee without following much of a process, often citing generalised ‘poor performance’, and the employee then alleges that the ‘real reason’ for dismissal was something very different. Perhaps the employee is pregnant and asserts that that was the real reason for dismissal, or perhaps she had uncovered some wrongdoing and was challenging her managers over it.
In these cases, the ET essentially has to conduct a balancing exercise – which is the most convincing narrative – the employer’s story or the employee’s story? Choosing not to follow any sort of procedure can put the employer on the back foot in persuading the ET that their reason is the real one. This is especially true if there is no underlying evidence of (say) the performance problems. Notes of a meeting where the manager sets out substantive concerns with performance and the employee responds to them will at least demonstrate that the concerns were real and credible, even if a full procedure isn’t followed.
Timing can also be critical – consider an employee who successfully completes her probationary period and is dismissed for poor performance 20 months into the role and two weeks after she has told her boss she is pregnant. Compare her to an employee who is dismissed at a probationary review only five months into her employment, but alleges that the employer guessed that she was pregnant a couple of weeks before she was due to tell them and that that was the real reason for dismissal. Both may well bring claims for pregnancy-related dismissal, but it’s easy to see which employer is going to have the most difficult explaining to do.
Taking that into account, if you have an employee whom you know may have grounds for a claim outside the ‘standard’ unfair dismissal then it makes sense to be very careful about dismissing without following a procedure in circumstances where that procedure could be a really valuable way of evidencing the lawfulness of your decision. Why throw away that chance?
It’s worth being aware that even employees who don’t have an obvious protected characteristic or other ground for bringing a claim may surprise you. The increase in the qualifying period for unfair dismissal from one year to two years has led to an increase in creativity amongst claimants and their lawyers. A notable recent example comes courtesy of one Mr Spaceman, who claimed, in Spaceman v IsisMediclean Ltd that his dismissal was automatically unfair on the grounds of asserting a statutory right, simply because he had said in the dismissal hearing that he believed the company were going to unfairly dismiss him. This circular argument was confidently disposed of by both the ET and the EAT, but it’s a good reminder that the reasons short-serving employees might assert for challenging dismissals are varied, and sometimes hard to predict.
Some practical tips
• Make it clear in disciplinary procedures (and other relevant procedures which can lead to dismissal) that the organisation may use an abbreviated process, or no process, where an individual has less than two years’ service).
• Use probationary periods, and ensure your probationary reviews are robust. It remains less risky to dismiss someone after six months than at 18 months+.
• Don’t make mistakes when calculating length of service if you are close to the two year point. The rules are slightly tricky, and notice periods can be added on in some instances, so do get advice if you have any doubt.
• Treat each case on its facts – there may be good reasons for following a detailed process in some cases, less so in others. Provided you have a coherent reason for your approach there is no need for ‘one size fits all’.
• Always think about what evidence you would be able to produce to substantiate the reason for your decision if called upon to do so.