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Question: Do I need to follow a fair process to dismiss an employee with less than 2 years’ service?

Whilst many employers may never have faced a Tribunal claim, they will almost all be very much aware of the financial and reputational risk to the business of getting a dismissal “wrong”. Ultimately, dismissing an employee without following a fair procedure involving some investigation, discussion and warnings would, from a legal perspective, almost always be unfair.

However, on the basis employees generally require 2 years continuous service to gain protection from unfair dismissal, employers often question whether it really matters if they follow a fair (or any) process when dismissing employees without the right to bring an unfair dismissal claim since the employer is unlikely to face any repercussions.

This is not an inaccurate assessment but it is important to remember that there are certain types of unfair dismissal claims that an employee can bring regardless of their length of service. This includes scenarios where an employee is dismissed, for example, for asserting a statutory right or blowing the whistle. Furthermore where a dismissal appears to be in any way discriminatory an employee does not require the minimum 2 years’ service to complain to a Tribunal.

Employers should not underestimate the “disgruntled” employee who can, and will get creative in trying to pursue legal action. Given the vast amount of information available online and in other forms, employees are perhaps now more than ever, better informed of their rights and will frame their claims to benefit from the exceptions to the general rule. Therefore unsuspecting employers can find themselves facing a claim they did not envisage and do not have the basis to defend where no process has been followed.

Whilst broadly the risk in dismissing shorter serving employees is less, a fairly basic dismissal process can be followed without being too onerous or time consuming for all those involved and will afford significantly more protection than taking no steps to manage the situation.  Employers facing any type of claim, unfair dismissal or not, will recognise the benefit of being able to demonstrate that they have acted fairly and reasonably in relation to the dismissal even if it did not strictly “need” to.

It will always be advisable for employers to carefully assess what type of claims an employee likely to be dismissed may have in order to gauge the overall risk to the business. Commercial and operational imperatives may lead employers to conclude that there is no need to follow a correct dismissal process where the risk is thought to be “low”. However, there will always be a legal risk in not following a correct procedure and we would therefore advise employers to perform at least an abbreviated dismissal process in every case.

Please feel free to contact us on 0191 282 2880 for a no obligation chat or email us if you require further advice.

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