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Unfair dismissal with less than two years of employment

8 November 2023

Employment laws within the UK seek to ensure that employees are treated fairly and with dignity during their careers. Employers often have the power and position to take advantage of workers for their benefit. A contract of employment sets out the employment terms and protects both the employer and the employee.

When it comes to termination of the employment contract, employers must provide a justified reason. Whether this is due to misconduct or lack of performance, there are justifications which are acceptable and others that are unacceptable. Within this article, we will cover the details of employment law surrounding unfair dismissal and the rights that employees have to appeal their dismissal when they have been employed for less than two years.

If you have been dismissed from employment or made redundant without reasonable cause, you may require the services of a knowledgeable solicitor. At Redkite Solicitors, we have a thorough understanding of employment law and are dedicated to ensuring that employees know their rights. For expert legal representation and advice, contact Redkite Solicitors today.

What is unfair dismissal?

Employees are protected from unfair dismissal by law. Should an employer choose to terminate an employment contract, there must be a lawful reason to do so. This may include one of the following reasons: the employee is unable or unqualified to perform the job, there is a genuine redundancy, the employee has broken conduct expectations, or they no longer meet the legal requirements to perform their job. Any reasons outside of those stated should be evaluated independently. Some are fair, whilst others are not.

Unfair dismissal occurs when an individual has been employed for more than two years, and no fair reason is given for their dismissal. This can happen when an employer has not provided sufficient justification for their decision or they did not follow an appropriate procedure in the decision to dismiss the employee. Employers must make decisions to dismiss an employee based on unacceptable behaviour or a lack of performance or capability unrelated to illness.

Appealing unfair dismissal

If an employee believes their dismissal was based on unfair grounds or insufficient reasoning was provided, they can appeal their employer’s decision. The individual must follow their employer’s appeal process and start the appeal as soon as possible. There is a time limit of three months minus one day before an employee can no longer appeal their dismissal. The procedure will start with a process called early conciliation which will be led by ACAS. Employees typically find it valuable to instruct a solicitor to accompany them through the process as they can inform them of their rights as an employee.

This process only applies to individuals whom the same employer has continuously employed for more than two years. Those employed for a period shorter than two years cannot appeal or claim based on their dismissal. However, there are extenuating circumstances that overrule this decision. Any reason for dismissal that is inherently unfair or linked to a protected characteristic, is known as automatically unfair dismissal.

What is considered to be an Automatically Unfair Dismissal?

• Health and Safety concerns

The Health and Safety Work Act (1974) grants employees the right to work in safe and healthy conditions. Therefore, employers are obligated to provide a ventilated, well-maintained, adequately-lit workplace. Employers should also offer sufficient provisions such as clean drinking water, bathrooms, and training.

An employee who raises concerns regarding the health and safety conditions of a workplace or refuses to work due to unsafe working conditions cannot be lawfully dismissed.

• Statutory notice period (wrongful dismissal)

Employers are required by law to provide statutory notice or pay in lieu of notice after a dismissal. This ensures that an employee is not left without an income abruptly. If an employer ceases employment without an agreed notice period, this is considered a breach of contract and is known as wrongful dismissal.

• Protected characteristics

Under the Equality Act (2010), unlawful discrimination occurs if a dismissal is made based on the grounds of an employee’s age, gender, race, disability, sexual orientation, religion or belief. If an employee suspects, or it is implied that they have been dismissed due to these factors, they are within their rights to pursue action against the employer.

• Involvement in Whistleblowing

Whistle-blowing is the term used to describe an employee who has reported the wrongdoings of their employer. This information is disclosed to the general public as it has some impact on public interest. By law, whistleblowers are protected. This means that an employer who has blown the whistle should not lose their job because of their actions.

• Parental leave

New parents in the UK are entitled to either statutory maternity or paternity leave. This is a basic expectation within the workplace, despite some employers offering their own policies. Employees’ rights are entirely protected whilst on parental leave. This means they are entitled to pay raises and the right to return to their job following the period of leave.

In accordance with statutory maternity leave, mothers must take a compulsory two weeks leave following the birth of their baby. They are then entitled to take up to 52 weeks of leave within the first twelve months of the baby’s life. They can use part of this leave up to 11 weeks before their due date. Statutory paternity leave also entitles workers to two weeks of leave from the birth date. If an employer dismisses an employee for taking parental leave, it would be considered automatically unfair dismissal.

• Being a member or representative of a trade union

Trade Unions exist to protect the rights of workers and improve their employment conditions.

It is an employee’s legal right to decide whether they do or do not want to join a trade union. An employer cannot convince employees to change their membership status by using threats of dismissal. Employers are also unable to refuse employment based on your union status.

• Industrial action

In the event that a lawfully organised ballot is passed, an employer cannot legally terminate an employment contract following involvement in industrial action. Employees have the right to take part in the action following the expectation that they will provide notice seven days before it is due to commence. Employees are then entitled to participate in the action anytime during the twelve weeks it is expected to run. A dismissal following industrial action is a breach of employment rights and therefore considered unlawful.

How compensation is awarded for unfair dismissal

Employees who have reason to believe that their employer conducted an automatically unfair dismissal are within their rights to pursue compensation or reinstate their employment. Although it may be possible, you should always consider whether you want to work under the same employer following a breach of your worker’s rights. An employer who dismissed you based on your protected characteristics, request for parental leave, or interest in corrective industrial action may not be the type of organisation you want to work for.

Instead, employees can retrieve compensation if the employment tribunal agrees that they were unfairly dismissed. Following the success of your claim, you will receive a basic award. This is a fixed sum that is calculated in the same way as statutory redundancy payment. In addition, an employee will also receive a compensatory award to cover the money lost due to their dismissal. This will primarily include the salary or loss of income accumulated, as well as pension losses and costs accumulated whilst searching for a new job.

Final Thoughts

While it is usually only employees who have been employed for over two years who can claim unfair dismissal, there are some powerful exceptions for those employed for a shorter