Unfair dismissal – the two year continuous service requirement.
Usually to be eligible to claim for unfair dismissal you need to have at least 2 years’ continuous service.
However it is recognised that in some circumstances it is just not fair to impose this requirement. The two year requirement isn’t necessary when the dismissal is related to:
- Pregnancy, childbirth, statutory maternity/paternity pay, adoption leave, parental leave or dependent care leave;
- For a health and safety reason, i.e. for carrying our functions as the health and safety representative, for reporting issues or refusing to work in an unsafe environment;
- For being a protected shop worker or a betting worker and refusing to work on a Sunday. A protected worker is someone:
- Who was already employed as a shop or betting worker before 26 August 1994 and did not work Sundays and has been employed continuously since then; or
- Whose contract does not include working on Sundays
- For a reason connected to the Working time Regulations;
- For performing functions as an occupational pensions trustee;
- For performing functions as an employee representative on a TUPE transfer or collective redundancy;
- In connection with trade union recognition, membership (or non-membership) or participation in union activities;
- For taking part in protected industrial action;
- For performing functions or exercising the rights of an employee representative under the Information and Consultation of Employees Regulations 2004 (SI 2004/3426)
- For making a protected disclosure;
- For asserting a statutory right;
- In connection with an application for flexible working. Since 30 June 2014, all employees with 26 weeks’ continuous service have the right to make an application;
- In relation to the national minimum wage;
- In relation to being a part time worker;
- In relation to being a fixed term employee;
- In relation to exercising prescribed rights as an agency worker;
- To enforcing rights in relation to working tax credits;
- In connection with time off for study and training request rights;
- In connection with carrying our jury service;
- In connection with European Works Council;
- In connection with exercising the right to be accompanied to a disciplinary or grievance hearing;
- In connection with pension auto-enrolment; and
- Being selected for redundancy for any of the above grounds
Once it is decided that the qualifying period is not relevant to your situation (there may need to be a preliminary hearing on this point), the claim for unfair dismissal will proceed. To be successful you will still need to show that there was either no fair reason for the dismissal and/or that the dismissal was not fair in all the circumstances.
There are a number of situations where the dismissal may be automatically unfair – however that is for another day – stay tuned.
If you want to discuss unfair dismissal and/qualifying periods, please give our dedicated employment team a call on 0113 244 9931.