April 2011 Newsletter
Dismissals in the First Year of Employment
Employees must normally have one year’s continuous period of employment to qualify for the right to make a claim for unfair dismissal.
Beware, however, of the following:
· There are exceptions to the rule requiring a one-year qualifying period in unfair dismissal claims.
· Other types of claim do not have similar qualifying periods.
· The rules relating to continuity of employment or the date a contract is brought to an end might mean the employee has one year’s continuous employment where this was not apparent.
Exceptions to The One-Year Qualifying Period
In some claims for unfair dismissal an employee does not need to have one year’s continuous service. These include dismissals where the principal reason for dismissal is or relates to the employee:
· Being summoned for or being absent to attend jury service
· Being pregnant or taking maternity, paternity, adoption or parental leave
· Being a health and safety representative or making complaints or asserting certain rights in relation to health and safety
· Refusing to work Sundays (certain shop and betting workers only)
· Asserting rights under the Working Time Regulations
· Acting as a trustee of a relevant occupational pension scheme
· Being a representative for consultation relating to a TUPE transfer or collective redundancies (Where it is contemplated that 20 or more employees are at risk of redundancy)
· Making a Protected Disclosure (i.e. whistle blowing)
· Asserting a statutory right
· Enforcing a right under the National Minimum Wage Act 1998
· Enforcing a right relating to tax credits
· Asserting a right to flexible working
· Exercising a right to be accompanied (disciplinary, grievance and retirement procedure meetings)
· Asserting a right as a fixed term employee
· Being or not being a member of a trades union and exercising certain rights as a trades union member.
For example, if an employee is dismissed for a being absent due to pregnancy related illness then she can make a claim for unfair dismissal even if she is in her first year of employment as the principal reason for her dismissal related to her pregnancy.
Another example is an employee who is dismissed for complaining that he / she has not been paid. The employee could claim unfair dismissal without having one year’s service because he/she was dismissed for asserting the statutory right not to suffer deductions from wages.
The exceptions to the one-year qualifying rule are all circumstances in which an employee can claim “automatic” unfair dismissal. If a Tribunal is satisfied that the reason for dismissal was one of circumstances listed above then the dismissal is deemed to be unfair.
Note that the legislation is quite specific as to when some of the above circumstances will apply.
Selection for redundancy based on one of the circumstances listed above would be unfair.
Claims Not Requiring a Qualifying Period
Claims for unlawful discrimination do not require a qualifying period of employment. Dismissal on grounds race, sex, disability, age, sexual orientation or religion or belief can lead to a claim that the dismissal was discriminatory.
Perhaps particular caution should be given to dismissal for absenteeism or sickness.
Dismissal for time taken off for a pregnancy related illness amounts to sex discrimination. Dismissal for time off because of a disability related illness could amount to disability discrimination. Dismissal for being absent to look after a dependent could, in some circumstances, be discrimination on grounds of sex disability or age.
Employees are still entitled to contractual or statutory notice (if not dismissed for gross misconduct). Employees are also entitled to any accrued but untaken holiday pay.
Calculating One Year’s Continuous Service
In most cases this will be a straightforward exercise.
However, if the employee transfers from one employer to another under TUPE (Transfer of Undertakings (Protection of Employment) Regulations 2006) the employee’s service with the previous employer counts towards his/her continuous period of service.
An employee’s continuity of service may be preserved if, for example, the employee has been absent on account of:
· a “temporary cessation of work”;
· dismissal followed by re-instatement;
· certain military service;
· certain industrial action;
· sickness, injury, maternity, paternity, adoption or parental leave;
· by arrangement or custom.
An employee employed on successive fixed term contracts can, in effect, add the period of each fixed term contract together to calculate his / her continuous period of employment.
If an employee is given notice of dismissal before completing his / her first year of employment but the notice expires after the completion of the first year of employment, the employee will have the qualifying period to make a claim for unfair dismissal.
Where the employee is dismissed without notice shortly before completing his/her first year of employment, the employee may be deemed to have the qualifying period for making an unfair dismissal claim, if the employee would have completed one year’s service had the statutory minimum notice (one week) been given.
Practical Points
It is worth meeting with the employee before taking any decision to dismiss. This can ensure that there is no misunderstanding as to the reasons for dismissal. It gives an opportunity for the employee to make representations which can reduce the risk of a discriminatory dismissal.
If there has been a transfer of the organisation (e.g. an acquisition, merger or the winning of a contract to provide services) or if there has been a gap in the employee’s employment, take care to calculate employee’s period employment is correctly.
Consider what will be the deemed date of dismissal, particularly if the employee is being dismissed close to the completion of his / her first year of employment.