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 ‘automatically unfair dismissal’, or dismissal by discriminatory means.
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 UK 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:
- Gender reassignment
- Pregnancy and maternity
- 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.
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.