I have less than 1 year’s service,
can I make any claim at the Employment Tribunal for unfair dismissal?
The short answer to this is no but first be sure that you have less than one years service. What do I mean by this? Well I have dealt with a number of cases recently where the employer has dismissed an employee by calling them into a meeting and sacking them a few days before the first anniversary of their employment. They have been sacked and had their notice paid in lieu, which means that their effective date of termination would appear to be less than one year because their employment terminates on the date they are told of the termination. But provided the dismissal was not for gross misconduct, then the weeks notice will continue to run so that if his first anniversary is in this week, he will have a year’s service and can make a claim for unfair dismissal.
The other way employers often make a mistake
is when there has been a business take over, provided the Transfer
of Undertakings Regulations apply (TUPE). In this situation, any
previous service will count in the calculation of whether the employee
has a year’s service.
A number of claims do not require a year’s service such as all of the discrimination claims such as race, sex, pregnancy related discrimination, disability, and sexual orientation.
Claims for non-payment of wages, breaches of
the Working Time Regulations, minimum wage and breach of contract
also have no service requirement.
Victimisation after having made a complaint of “whistle blowing” or after making a health and safety complaint and assertion of a statutory right all have no service requirement.
There are a number of other claims but the key
issue is the reason for the dismissal has to be linked to the complaint,
victimisation or discrimination.
Penny has worked as a secretary in a local authority for
6 months. She has had her probation period extended because
the authority are not happy with her performance and attendance.
Secretly, Penny has been worried that she may be pregnant
but she has told no one at work about this. She has a review
and at the review she is dismissed. The authority has dismissed
an employee during the probation period with less than
a years service - no claim. |
Lets change the circumstances, Penny has been
performing ok and has not had her probation extended and after
six months she tells her boss that she is pregnant. The next day
she is called into the office and dismissed for poor performance.
In this scenario, in the absence of a reasonable explanation by
the employer, the dismissal may be linked to her pregnancy and
she would have a claim.
In conclusion, we get a lot of phone calls and
Claim Evaluators about being dismissed with no proper procedure
and with less than a years service and so have to tell people they
do not have the right not to be unfairly dismissed with less than
one year’s service.
Unless you can prove the reason related to an under one year issue
such as discrimination, the reality is there are very few claims
left to you, provided notice has been paid and the majority of
claims are worth very little.
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