Dismissing an Employee with Less than One Year's Service [Video]Posted in : Back to Basics on 18 May 2016
There's a common misconception amongst employers when dismissing an employee who does not have the qualifying one year of service required, in order to bring an ordinary unfair dismissal claim. They feel that they are safe from all industrial tribunal proceedings, and this will often lead an employer to dispense with the statutory dismissal process that is enshrined within our employment legislation in Northern Ireland.
It is true, of course, that in many situations if an employee has less than one year of service there will be a low risk. However, there are a range of exceptions.
To take this back to the start, the rule that underpins the requirement to follow proper process, is that an employee requires one year's continuity of service in order to bring an unfair dismissal claim. But as I've said, there are a number of significant exceptions, and therefore a prudent employer will apply close scrutiny whenever they're contemplating dismissing someone with less than one year's service.
The first point to look at is, is the dismissal discriminatory? Or could be deemed to be discriminatory? Because if it is, it is actionable, irrespective of length of service. There is no cap on the compensation that can be awarded by the tribunal in discrimination cases, and this is referred to as an injury to feelings award.
Employers should also consider, is the dismissal linked to a protected characteristic? For example, age, sex, political opinion or religious belief. If they have any concern at all, they should seek specific legal advice in order to assess the degree of risk involved.
The second point of note then, is the dismissal for a reason related to a protected characteristic, otherwise referred to as a whistle blowing complaint? If the employee makes a protected disclosure, and again, they're dismissed as a consequence of doing so, they can claim unfair dismissal, irrespective of their length of service.
Is the dismissal for a health and safety reason? That's another exception. And where an employee is designated to carry out activities in connection with preventing or reducing risks to health and safety, care should be exercised if dismissal is considered.
The law recognises that such individuals may come into conflict with their employer by the very nature of their appointment, and therefore protects them against dismissal because of their involvement in health and safety activities. There is no qualifying period in this respect.
Another exception then, has the individual asserted a statutory right? If yes, again they are protected against dismissal on that basis.
Our relevant legislation in Northern Ireland identifies the various statutory rights that are captured by this exception. For example, if they're asserting a statutory right under the working time regulations by, because they've taken a holiday or, have taken a rest break, in relation to their TUPE rights, or rights in relation to the unlawful deduction from earnings. So therefore if they have asserted a right and they're dismissed as a consequence, there will be no qualifying period attaching to any litigation.
Briefly then, to touch on, is the employee a trade union rep? If they are, and dismissal is for that reason, then that dismissal could also be regarded as unfair, regardless of length of service.
Do you, as an employer, have a contractual disciplinary policy or a contractual redundancy policy? If you do and, as I've suggested, that policy is contractually binding, then you need to be careful as you may have a potential exposure to a breach of contract claim.
Damages may be awarded as a consequence of that up to a certain value, and there's no qualifying period that attaches to a breach of contract claim in the industrial tribunal. However, a breach of contract claim can only be taken by an employee on the termination of their employment.
How do you circumvent that problem then? We're often asked that question. Well, you either make the policy non-contractual, or you add a section into the policy that suggests that the rules will not apply during the first year of an individual's employment.
It's very important that in these circumstances however, employers take advice as I have only referred, today, to a selection of the most commonly claimed exceptions or cited by claimants in employment proceedings.
Finally then, how do you minimise the risk in relation to dismissing employees with less than one year of service? Well keep in mind that it's open to the industrial tribunal to look behind the reason given by the employer, and explore the employee's argument, as to why they feel they have genuinely been dismissed. Has the employer applied some sort of smoke screen and there's actually another reason for the dismissal?
If no procedure is followed, then this can lead to a lack of tangible evidence about the real reason for dismissal, and cause employers real headaches at tribunal. So the best approach, we would advise, is to ensure the reason for the dismissal and the process followed, is robust. Basically the more evidence that can be produced and discovered, through the interlocutory process, the more likely the employer will be able to establish, and substantiate, a legitimate reason at tribunal.
It is very tempting to fast track the dismissal process for someone with less than one year of service. And, of course, in some situations it will be appropriate and legitimate to do so. But err with caution. The employer should be aware that there are a number of exceptions, as I've discussed, and a number that I haven't mentioned. So take advice and always keep a paper trail.This article is correct at 18/05/2016
The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.