Template dismissal outcome letter – Under two years service
When an employee joins a company, it may become apparent quite quickly that they aren’t the right person for the role. There may be issues with underperformance or even concerns about their conduct. Although this can be frustrating due to the time and effort is has taken to recruit, onboard and train the individual, it may be necessary to dismiss them within a relatively short period of time.
But, is it just as easy as highlighting to them that they have been dismissed?
In this article we cover:
- The risks of dismissing staff with short service
- Reasons which would be considered automatically unfair in the eyes of an employment tribunal
- Tips for dismissing staff with short service
- A list of FAQs we see on this topic, along with our recommended approach
- Advice from our Consultant Employment Law Solicitor, Tim Davies
What is the risk in dismissing staff with short service?
It’s often assumed that dismissing staff with short service is considerably more straightforward than when dealing with a long serving employee. While sometimes this can be the case, employers should be mindful of the potential risks when dismissing an employee with less than two years’ service.
It’s true that the qualifying length of service for an unfair dismissal claim is two years, however there are other claims that could be raised against an employer if the reason for the dismissal is considered to be ‘automatically unfair’ or discriminatory.
The automatically unfair reasons for dismissal
Automatically unfair reasons for dismissal include:
- family-related reasons, such as pregnancy, maternity leave, adoption leave or shared parental leave;
- refusing to give up a right under the Working Time Regulations 1998 (SI 1998/1833), for example the right to a rest period;
- whistleblowing;
- taking action to enforce the right to be paid the national minimum wage;
- trade union membership or activities; and
- a TUPE transfer (where the reason is not an economic, technical or organisational reason entailing changes in the workforce).
Similarly, if the employee could argue they have been dismissed due to a protected characteristic, they could raise a discrimination claim against the employer. The protected characteristics within the Equality Act 2010 are:
- age
- disability
- sex
- gender reassignment
- pregnancy and maternity
- race
- sexual orientation
- religion or belief
- marriage and civil partnership
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The impact of protected characteristics on potential compensation awards
It’s important to consider these exceptions when dismissing staff with short service. With discrimination claims there is no ceiling on the amount of compensation that can be awarded if a claim is successful and in 2017/18 the average disability discrimination compensation award was £30,698. An individual can also be held personally liable for any discriminatory treatment of a colleague and therefore could be liable for some of the compensation awarded to the employee.
The Acas Code of Practice on discipline and grievance should be considered as this non statutory code sets out the standards for fairness. Employment Tribunals are legally required to take the Acas Code of Practice into account when considering relevant cases and can adjust awards by up to 25 per cent for unreasonable failure to comply with any provisions of the code.
The Employment Rights Act 1996 provides five potentially fair reasons for dismissal, these are capability, misconduct, redundancy, statutory restriction or ‘some other substantial reason’. If an employer is dismissing for one of these reasons then it’s likely that the dismissal will be fair if a fair process has been followed. In a situation where an employee has less than two years’ service and has no protected characteristics then it’s likely the employer will be able to shorten their process in order to reach dismissal. However it’s not always easy to tell how to approach a dismissal situation with a short serving employee so we have outlined some frequently asked questions below:
Useful tips for dismissing short-service employees
1. Have clear procedures in place
It’s not necessary to have separate procedures in place for short and long serving employees but it’s always advisable that the procedures make reference to the fact that the company may adopt a shortened version of the process, or no process, where an individual has less than two years’ service.
2. Always double check the start date
The length of the probationary period will usually vary depending on the nature of the role but it’s advisable to have a minimum of 6 months to give both parties enough time to determine if the fit is right for the business.
3. Treat each case on its own merits
Unfortunately it’s not possible to adopt a blanket approach for all short serving employees because the circumstances of each case will be different. In some cases for instance, it would be sensible to follow a more robust process when there are further risks associated with a potential disability.
4. Utilise probationary periods
Probationary periods are an excellent way of establishing if the employee is right for the business and vice versa. It’s important to use this time to identify any training needs and it’s often the case that where things aren’t working out, it becomes clear at an early stage. If it becomes clear part way through an individual’s probationary period that they are for example, underperforming, the employer shouldn’t wait until the end of this period to address the issues. In some cases things may improve but if not, a dismissal can feel more reasonable from the employee’s perspective if this is during their probationary period and can make it easier to address for the employer.
5. Consider how the dismissal would look in the eyes of an Employment Tribunal
When dismissing an employee with less than two years’ service, they cannot claim unfair dismissal but as outlined within the article there are other claims that they could potentially bring such as wrongful dismissal, breach of contract and discrimination. It’s therefore always important to consider what information or evidence you would be able to produce to demonstrate the reason for the dismissal if required. In the absence of any evidence, it would be difficult to defend a potential discrimination claim so this is always worth keeping in mind.
FAQs
Do I need to have different procedures in place for employees with less than two years’ service?
No, there is no obligation to have different procedures for short serving employees. However, it is useful to outline within the procedures that a process could be shortened for employees with less than two years’ service. For example, in the disciplinary procedure it’s advisable to make reference to employees with less than two years’ service and to explain that the employer may not follow all of the stages in the procedure for short serving employees.
It’s advisable to make company policies non-contractual however, where it is the case that a disciplinary policy is contractual, an employee could claim for breach of contract if the employer has not followed the procedure correctly. There is no qualifying length of service for a breach of contract claim.
Do I need to give a short serving employee a reason for their dismissal?
Legally an employer is not required to give an employee with less than two years’ service a written statement outlining the reason for their dismissal. However, it is usually recommended that an employee is informed in writing of the reason for their dismissal so that should the individual argue they have been dismissed due to a discriminatory reason, the employer is more likely to be able to defend a claim. In the absence of any documentation outlining the reason for the dismissal, it’s likely to be very difficult to put forward a defence.
Do I need to give a short serving employee the right to appeal against their dismissal?
There is no legal obligation to provide a short serving employee the right to appeal against their dismissal. However, it’s always recommended so that in the event that the individual does have a protected characteristic or is likely to raise a claim, there is a further stage at which any issues can be addressed internally.
Whilst employees don’t have to exhaust their internal processes before raising a tribunal claim, it’s likely that this would give an employer the opportunity to rectify any potential procedural issues and therefore reduce risk in the event of a claim. Within the company procedure the employer could shorten the appeal process for short serving employees for example, confirm that an appeal will be responded to in writing instead of holding an appeal meeting first.
Do I need to formally invite the employee to a meeting to dismiss them or can I dismiss them on the spot?
It is always advisable to write to the employee to formally invite them to a meeting. This invite should give them the right to be accompanied and outline what the potential outcome of the meeting could be i.e. their dismissal. An on the spot dismissal, even where this is due to gross misconduct, is never recommended. Following a process is likely to give an opportunity for the employer to head off any potential discrimination claims that may arise. In addition, it demonstrates that the employer treats staff fairly.
I have a short serving employee that is underperforming, do I need to follow each step in my performance management procedure before reaching dismissal?
Depending on the wording of the Company procedure, it wouldn’t be necessary in this situation to follow each step in the performance process and this could therefore be shortened. It would be advisable to hold a meeting with the employee to give them an opportunity to respond and put forward any mitigating factors to consider.
This would give the employer an opportunity to identify if there are any potential risks before reaching a decision, for instance, if an employee argued that they were underperforming due to a long-term underlying health issue which may amount to a disability, it would be wise to seek medical advice before determining the next steps. However, in the absence of any mitigating factors or protected characteristics then the risk of dismissing the individual at the first stage would be low even where there have been no prior informal discussions regarding the individual’s performance.
Do I need to carry out an investigation into a disciplinary issue before dismissing a short serving employee?
This very much depends on the context of the situation, often it’s best to carry out a reasonable investigation to determine the facts of the alleged misconduct. However if there are not any protected characteristics and the employer is confident that the misconduct has occurred then it would be reasonable to invite the individual to a disciplinary hearing with a potential outcome of dismissal without having to carry out an in depth investigation into the matter.
It’s not unheard of for employers to miscalculate length of service or not consider that the employee is approaching the two year mark. Notice periods can be added on in some cases so it’s always important to check and double check. If an individual is very close to the two year mark then the safest approach is to treat them as if they have already reached this.
Advice from our Consultant Employment Law Solicitor
Employers can sometimes become complacent when dealing with employees of under 2 years’ service and are occasionally caught out by miscalculating continuous service (particularly as it applies to notice periods and garden leave) or by failing to identify potential risks. Conducting a formal hearing prior to taking a decision to dismiss is highly beneficial in terms of flushing out any relevant factors that the employer may have been unaware of, such as an underlying medical condition affecting performance. It also creates a contemporaneous record of the grounds for dismissal, which can be crucial in the event of a subsequent legal dispute. It is surprisingly common for employees to argue that the ‘true’ grounds for dismissal were very different to those stated by the employer, and in the absence of any documented dismissal procedure, the employer will lack credibility in seeking to retrospectively explain it.
Tim Davies, Consultant Employment Law Solicitor
Final thoughts
In summary, it is often the case that a dismissal for a short serving employee will be more straight forward and processes will be much less onerous for the employer, however it’s important not to push on with a fast track dismissal in all cases for short serving employees before assessing the risks. It’s important to be mindful of the potential claims that don’t have a qualifying period such as those outlined above and keep an adequate paper trail to at least show that the reason for the dismissal was not unlawful.
How Fitzgerald can help
If you need support with updating your procedures or advice on a potential dismissal situation, please get in touch on 0330 223 5253 or office@fitzgeraldhr.co.uk.
Template dismissal outcome letter – Under two years service
Further reading
- What HR documentation do you need to use to be compliant with legislation
- A complete guide to handling redundancies for employers
- 10 things to consider when choosing an HR Outsourcing Company
- Employment law changes: past, present and upcoming
- How to draft a Homeworking Policy – Template
- How to conduct a grievance investigation
