We are often asked by our employer clients for advice on dismissing employees who have less than 2 years’ service – the qualification period employees need in order to bring a claim for ordinary unfair dismissal (strictly it is 103 weeks’ service).
Generally the advice is straightforward, and those clients who have sought advice prior to making the decision to dismiss will be much less likely to fall into one of the traps than those who dismiss – and then seek advice when there is a comeback from the employee!
The general problem which some employers overlook is that there are a significant number of claims which employees or former employees can bring and which do not require any qualification period. There are a number of reasons for unfair dismissal which fall into this category, for example dismissals related to health and safety, dismissals for seeking to assert a statutory right, dismissals relating to whistleblowing, dismissals relating to seeking to enforce the National Minimum Wage and many others. The other big potential trap is of course discrimination.
Employees who are dismissed are often, understandably, aggrieved at the way that they have been treated (or perceive to have been treated). In the team here at Pure Employment Law we have seen several examples over the years where employees who have quite properly been dismissed for performance or conduct reasons, but because of their length of service they are not able to bring claims of “ordinary” unfair dismissal, and therefore they have claimed that their dismissal was for a discriminatory reason, or for another reason which does not require any qualifying service.
So how do employers protect themselves against these types of claims? The short answer is: evidence. If the reason for the dismissal was, for example, performance, we would expect there to be some evidence of concerns being raised with the employee, and very probably some documentation.
One of the problems which employers can face is the burden of proof in discrimination cases. At the outset, the burden is on the employee to show that they have been subjected to a detriment – this is usually easy if you have been dismissed. The burden then shifts to the employer to show that the reason for the dismissal was not discriminatory. That is where the evidence comes in. If the employer can show that performance concerns were raised and the employee made aware of them, then it will be in a much better position to defend any claims which are brought, as well as being much more likely to deflect any potential claims.
By way of example, some years ago I spent some time judicial shadowing in the Central London Employment Tribunal. This means that you sit with the Tribunal panel and sit with them during their deliberations, but do not have a vote on the outcome. I sat through a case where a waiter who had been with a restaurant for 11 months (the qualification period for unfair dismissal was then 12 months) was then dismissed. He alleged that the dismissal was because of his race; the employer brought along 3 witnesses to give examples of the employee’s behaviour which had led them to the decision to dismiss. However, it transpired that no one had ever mentioned any of the concerns to the employee, so perhaps it was no wonder that when he was dismissed he did not believe that the reason was his behaviour. In that particular case the employee’s claim failed, but it took 3 witnesses and a 2 day hearing before the Tribunal found in their favour – had they had evidence of discussions about the behaviour, then probably the case would never have been brought, and even if it had been, it could have been disposed of much more quickly and cheaply than it was.
So for employers the message is clear – even if someone does not qualify for unfair dismissal, do not assume that they have no rights, and if you are going to dismiss, make sure you have the evidence to show the reason why. It is always best to take advice before dismissing any employee.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).