Short Service Dismissals: How to Dismiss Short Serving Employees

As an employer, you know that managing your workforce can sometimes be a challenging task. Despite your best efforts in recruitment, there may come a time when an employee’s performance or conduct falls short of your expectations. In such situations, the thought of going through a lengthy and cumbersome dismissal process can be daunting. 

However, there’s good news – short service dismissals provide a quick and efficient way to address these issues while staying compliant with employment law. In this article, we’ll delve into the world of short-service dismissals, offering you a comprehensive guide on how to navigate this process effectively and fairly.

What is short service dismissal?

Short service dismissal refers to the termination of an employee’s contract within their first two years of employment. In standard dismissal cases, employees need at least two years of service to bring an ordinary unfair dismissal claim. However, short-service dismissals offer employers an opportunity to expedite the termination process, especially when faced with performance or conduct issues that require immediate action.

In short-service dismissal cases, employers need to ensure they still follow a sound procedure. Failure to do so may put your company at risk. The former employee may claim ‘automatic unfair dismissal’, or dismissal by discriminatory means, or other ‘day one claims’.

What is a short serving employee?

A short serving employee is an individual who has been employed for less than two years within a company. In the context of GB employment law, this two-year mark is particularly significant as it determines the extent of the employee’s rights, especially concerning unfair dismissal claims.

Rights and Protections

Short serving employees generally have fewer protections compared to their long-serving counterparts. For example, employees with less than two years of service typically cannot bring an ordinary unfair dismissal claim. However, this does not mean they are without recourse; they are still protected under specific conditions, such as claims of discrimination, whistleblowing, or automatically unfair dismissal.

Employer Considerations

The shorter employment period offers employers more flexibility in addressing performance or conduct issues without the same level of legal risk associated with longer-serving employees. However, employers must still follow proper procedures to avoid potential claims related to breach of contract or discrimination, ensuring that the dismissal process is fair and compliant with employment law.

Understanding the status of a short serving employee is crucial for employers as it impacts both the strategy and risk associated with any potential dismissal. This knowledge allows employers to manage their workforce effectively while remaining compliant with legal obligations.

Short Service Dismissal vs other forms of Dismissal

When it comes to dismissing an employee, it’s essential to understand the nuances between short service dismissal and other forms of dismissal, such as redundancy, gross misconduct, and performance-related dismissals. Each type of dismissal comes with its own set of legal requirements and implications, which can significantly impact the process and outcome.

Short Service Dismissal

Short service dismissal refers to the termination of an employee’s contract within their first two years of employment. This type of dismissal offers employers a quicker and more flexible way to address performance or conduct issues, as employees with less than two years of service generally do not qualify to bring an ordinary unfair dismissal claim. However, it’s important to note that this doesn’t provide blanket immunity; employers must still adhere to a basic fair procedure, which includes documenting the reasons for dismissal. Failure to do so could expose the employer to claims such as automatic unfair dismissal or breach of contract.

Redundancy

Redundancy occurs when an employer decides that a particular role is no longer needed due to changes in the business, such as restructuring or downsizing. Unlike short service dismissal, redundancy requires a formal process, including identifying the redundancy pool, consulting with affected employees, and exploring alternative employment opportunities within the company. Employees with two years of service are entitled to statutory redundancy pay, notice periods, and the right to appeal the decision. If an employee believes the redundancy was not genuine or the process was mishandled, they can claim unfair dismissal, adding a layer of complexity to the procedure.

Gross Misconduct

Gross misconduct involves severe actions by an employee, such as theft, fraud, or violence, which justify immediate dismissal without notice. In these cases, employers must conduct a thorough investigation and hold a disciplinary hearing before making a final decision. Even though the employee’s behavior might warrant dismissal, employers are still required to follow a fair procedure to avoid legal challenges. If an employee feels that the accusation is unfounded or the process was unfair, they can contest the dismissal, potentially leading to legal disputes.

Performance-Related Dismissal

Performance-related dismissal is based on an employee’s inability to meet the required performance standards or achieve the expected level of competency. Before considering dismissal, employers are generally expected to implement a Performance Improvement Plan (PIP), which outlines clear objectives, provides support, and allows a reasonable timeframe for improvement. If the employee fails to meet the performance expectations despite these efforts, the employer may proceed with a formal disciplinary process. However, if the employee believes the expectations were unreasonable or the PIP was not implemented fairly, they may challenge the dismissal as unfair.

Comparison and Key Considerations

What are the legal implications of short-service dismissal?

Short-service dismissal is not always as straightforward as it may seem. Employers must be aware of the legal implications when proceeding with a short-service dismissal, as the employee could still pursue other claims associated with their employment and/or dismissal, such as:

‘Automatically Unfair Dismissal’

An automatically unfair dismissal transpires when the dismissal breaches an employee’s statutory legal rights. While there are around 60 grounds in total for an employee can claim, here are some of the most common grounds you may encounter:

• Family-related: Dismissals regarding maternity or paternity, shared parental leave or adoption leave.
• Refusing to give up certain statutory rights: There are several statutory rights which allow an employee to automatically claim unfair dismissal. For example, being dismissed over refusing to work over 48 hours a week on average or being dismissed after insisting on being paid the national minimum wage – to name a few.
• Refusal to carry out certain tasks: A staff member cannot be dismissed on short service if they reasonably refuse to carry out certain tasks that can put them or others at risk in the workplace. For instance, an employee lifting heavy materials without proper equipment, or an employee operating machinery without the correct safety qualifications.
• Trade Union membership: An employee cannot be dismissed for joining or by being affiliated with a trade union. This is a GB Law employee right.
• Whistleblowing: It is automatically an unfair dismissal if the employee is dismissed after reporting the employer for wrongdoing.
• Health and Safety: An employee cannot be dismissed due to acting on a health and safety issue.

Dismissal by discriminatory means

As an employer, you should be careful to not let an employee go because of a protected characteristic. This includes: 

• Age
• Disability
• Sex
• Gender reassignment
• Pregnancy and maternity
• Race
• Sexual orientation
• Religion or belief
• Marriage or civil partnership

It’s necessary to consider these exceptions when dismissing a short-serving employee. With discrimination claims, a huge business damaging amount of compensation can be awarded if a claim is successful. 

Breach of contract claims 

Even with less than two years service, an employee can pursue a breach of contract claim if the terms of their employment have been breached by the employer. Terms relating to any failure to follow a contractual procedure may be pursued, so speaking with a specialist from Kingfisher is advised so we can review any existing contractual policies before you pursue a short-service dismissal. 

In fact, employers often fail to particularise probationary period and fixed-term employment clauses correctly, causing issues when looking to dismiss an employee. Therefore, caution should always be paid to the remuneration and other financial benefits the employee has received throughout their employment and honouring contractual entitlements in accordance with the contract of employment reduces the risk of a breach of contract claim. It’s advised that regular reviews of employment documentation take place to ensure these issues do not present a problem when you are considering dismissal. 

Alternatives to Dismissal

While dismissal might seem like the most straightforward solution to address performance or conduct issues with short-serving employees, it’s important to consider alternatives that can resolve problems while maintaining the employment relationship. These alternatives not only help avoid the legal risks associated with dismissal but also promote employee development, reduce turnover costs, and preserve workplace morale.

Performance Improvement Plans (PIPs)

Implementing a Performance Improvement Plan (PIP) is one of the most effective alternatives to dismissal. A PIP is a structured approach to address performance issues by setting clear expectations, providing the necessary support, and allowing the employee a specific timeframe to improve. This plan should include measurable goals, regular check-ins, and feedback to help the employee understand where they need to improve and how they can achieve the required standards. PIPs are particularly useful when the employee shows potential but needs guidance to meet their performance targets. They also demonstrate the employer’s commitment to supporting their employees, which can enhance loyalty and motivation.

Additional Training and Development

Sometimes, performance issues stem from a lack of skills or knowledge rather than a lack of effort. In such cases, offering additional training or development opportunities can be a more constructive solution than dismissal. This could involve formal training programs, mentoring, or on-the-job coaching. By investing in the employee’s growth, employers can help them acquire the skills needed to perform effectively in their role. This not only addresses the immediate performance issue but also contributes to the overall skillset of the workforce, which can be beneficial for the business in the long term.

Role Reassignment or Redeployment

If an employee is struggling in their current role but possesses strengths that could be valuable elsewhere in the organization, role reassignment or redeployment could be an ideal solution. This approach involves moving the employee to a different position that better aligns with their skills and interests. It’s important to handle this process sensitively, ensuring that the employee feels supported and valued. Redeployment can prevent the loss of talent and maintain morale, while also placing the employee in a role where they are more likely to succeed.

Mediation and Conflict Resolution

When performance or conduct issues are related to interpersonal conflicts or misunderstandings, mediation can be an effective alternative to dismissal. Mediation involves bringing in a neutral third party to help resolve disputes between employees or between an employee and their manager. By addressing the root causes of conflict, mediation can restore working relationships and improve the overall work environment. This approach not only resolves the immediate issue but can also prevent similar problems from arising in the future.

Flexible Working Arrangements

In some cases, performance issues may be related to personal circumstances that affect the employee’s ability to work effectively. Offering flexible working arrangements, such as adjusting work hours or allowing remote work, can alleviate these challenges and improve performance. Flexible working options demonstrate the employer’s willingness to accommodate employees’ needs, which can lead to increased loyalty and job satisfaction.

Regular Reviews and Feedback

Establishing a routine of regular reviews and feedback can help identify and address issues before they escalate to the point of considering dismissal. Regular one-on-one meetings provide an opportunity for open communication between the employee and their manager, allowing for ongoing support, guidance, and early intervention if problems arise. This proactive approach can prevent performance issues from becoming severe enough to warrant dismissal and helps employees stay on track with their professional development.

How Kingfisher Professional Services Can Help

Kingfisher Professional Services is your trusted partner for all things Employment Law and Human Resources. With extensive expertise in handling complex HR challenges, we provide tailored consultancy and support to ensure your business remains compliant and effective. 

Whether you’re navigating the intricacies of short service dismissals, implementing alternative strategies to manage employee performance, or ensuring your HR practices align with the latest legal standards, Kingfisher’s dedicated team is here to guide you every step of the way. By partnering with us, you gain access to industry-leading advice, 24/7 support, and bespoke solutions designed to meet the unique needs of your business, helping you manage your workforce with confidence and security.

Conclusion

In conclusion, short-service dismissals can be a valuable tool for employers facing performance or conduct issues with employees in their first two years of service. While they offer a streamlined process for termination, it is crucial to proceed with caution and an understanding of the legal implications involved. 

Short-service dismissals do not grant employers complete immunity from legal challenges. Employees can still pursue claims of automatically unfair dismissal, discrimination, or breach of contract. These claims can result in significant financial and reputational damage to your company if not handled correctly.

Employers should always consider seeking legal advice to assess the specific circumstances and potential risks associated with a short-service dismissal. Additionally, it’s essential to regularly review and update employment documentation to ensure compliance with contractual obligations and avoid pitfalls that could lead to legal disputes. 

Ultimately, while short service dismissals offer a quicker resolution to employment issues, they are not suitable for every situation. Employers should carefully evaluate each case and consider alternative approaches, such as performance improvement plans or disciplinary procedures, to address employee concerns effectively and fairly. By doing so, employers can maintain a productive and compliant workforce while minimising the risk of legal complications. 

If you have questions or need assistance in managing short service dismissals, don’t hesitate to reach out to Kingfisher Professional Services for expert advice tailored to your unique situation. 

Frequently Asked Questions

Can I dismiss an employee with less than two years of service without following a formal process?

Yes, in some cases, a short service dismissal may be appropriate, but it’s essential to assess the specific circumstances and potential legal risks.

What are the risks of short-service dismissals?

The primary risks include potential discrimination or whistleblowing claims, which can be costly and damaging to your company’s reputation.

Do I need legal advice for a short service dismissal?

Seeking legal advice is advisable to assess the legality and potential risks associated with the dismissal.

Can an employee with less than two years of service claim unfair dismissal?

In most cases, employees with less than two years of service cannot claim ordinary unfair dismissal, but exceptions exist, such as discrimination claims, automatic unfair dismissal and breach of contract claims. 

What if a short service dismissal isn’t appropriate for my situation?

If a short service dismissal is not suitable, consider alternative approaches such as performance improvement plans or disciplinary procedures to address the issues.