Dismissing within the first two years (take care not to slip up on a technicality)

A common misconception is that employees with less than 2 years’ service do not have the right to make a claim for ordinary unfair dismissal and therefore that the only potential claims from such employees are discrimination claims.

There are in fact quite a few bear traps employers should avoid as there are circumstances in which a dismissal can be deemed to be automatically unfair, regardless of the employee’s length of service. One of these is where the employee is dismissed for asserting infringement of a statutory right.  Statutory rights include:

• a written statement of your terms of employment within two months of starting work;
• an itemised pay slip;
• being paid at least the National Minimum Wage;
• not to have illegal deductions made from your pay;
• paid holiday;
• work a maximum of 48 hours each week; and
• weekly and daily rest breaks.

For example, in the case of Elizabeth Clare Care Management Ltd v Francis, the employee had complained to her employer on several occasions about late payment of her wages. She was subsequently dismissed and the Employment Appeal Tribunal held that she had been dismissed as a result of asserting her statutory right not to suffer an unlawful deduction from her wages, and that therefore her dismissal was unfair.

However, in the recent case of Spaceman v ISS Mediclean Ltd, the Employment Appeal Tribunal held that asserting a future breach of a statutory right cannot found a claim for automatically unfair dismissal: there must have been an actual infringement by the employer, not just the threat of a future infringement.

The employee in that case had been dismissed for gross misconduct. During the internal disciplinary process, the employee alleged that the employer had predetermined to dismiss him. He claimed that his allegation amounted to the assertion of a statutory right (i.e. the right not to be unfairly dismissed) and that his subsequent dismissal was a direct result of his assertion and was therefore automatically unfair.

The EAT upheld the Tribunal’s decision to strike out his claim on the basis that it had no reasonable prospects of success, holding that the legislation requires an allegation by the employee that there has already been an infringement of a statutory right – an allegation that there may be a breach in the future is not sufficient.

Kirsty Alleyne, Senior Solicitor