Wed 24 May 2023

Dismissed with less than 2 years' service? What you need to know.

Although employees usually need to have 2 years' continuous service with their employer before they are able to claim unfair dismissal, this is not always the case.

Can I claim unfair dismissal if I do not have 2 years continuous service?

If you do not have 2 years' service (or more accurately, 103 weeks continuous service) then you will not be able to claim "ordinary" unfair dismissal.  However, there are a number of exceptions to this general rule on qualifying service, including most "automatic unfair dismissals".  For example, you do not need any qualifying service if you are dismissed for:-

  • a reason connected to pregnancy, all reasons relating to maternity or a reason related to any type of family leave e.g. parental, paternity, adoption leave etc;
  • a reason connected to your part-time or fixed-term status;
  • raising a health and safety reasons;
  • making a protected disclosure (whistleblowing);
  • acting as an employee or trade union representative;
  • for asserting certain statutory rights, such as the right to national minimum wage or annual leave.

The above list is not exhaustive and if you feel the circumstances of your dismissal were unfair it is worth checking with an expert even if you do not have 2 years' service.

If you are successful with an unfair dismissal claim then a Tribunal may award compensation or, if you have asked for it, order that you are re-employed by your employer. In most cases there is a cap on the upper limit of compensation but that is not the case where the dismissal was because you were carrying out health and safety activities or whistleblowing.  Compensation consists of a basic award (equivalent to a redundancy payment) and a compensatory award that is based on your net losses flowing from the dismissal.

Breach of contract

You may be able to claim for breach of contract if you have been dismissed without notice or pay in lieu of notice. No service requirement is needed to claim for breach of contract.  Such a claim might also arise where your employer has a contractual disciplinary or redundancy policy and they fail to follow it when dismissing you.

Discriminatory dismissals

A dismissal is discriminatory if it is for a reason related to any of the "protected characteristics" set out in the Equality Act 2010.  This includes age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.  If your dismissal is discriminatory there is no limit on the compensation that can be awarded (although it is based on your losses flowing from the dismissal) and an award for injury to feelings can also be made.

Time limits

You need to raise any claims relating to your dismissal within three months from the date of termination of your employment.  Most claims require you to undertake "Early Conciliation" via ACAS prior to making a tribunal application.  If you do not raise a claim within the necessary timescale you are likely to lose the right to pursue the claim.  If you are unsure you should seek legal advice immediately.

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