Should you follow a process before dismissing an employee with less than 2 years’ service?
We are often asked that question because employees currently need two years’ service to claim unfair dismissal. There is no right answer.
On the one hand, it may feel like the right thing to do and it may feel as though you are minimising a claim for discrimination.
On the other hand, if you start a process when you didn’t need to, (whether that be disciplinary, performance management or redundancy), the employee could:
- Put in a grievance
- Go off sick
- Make a public interest disclosure (whistleblowing)
- Announce that they are pregnant
- Announce that they are disabled
- Make a subject access request
- Drag the process out until they reach 2 years’ service.
We have known all those things happen (sometimes more than one for the same employee).
Doing what feels like the right thing can quickly become a nightmare and the client ends up kicking themselves for starting a process that was legally unnecessary.
Plus, is it really the right thing anyway? If you have decided that you want to exit an employee, they won’t actually benefit from being taken through a stressful process.
Our advice is usually therefore not to follow any process if an employee has less than 2 years’ service, at least for now.
From 2027, employees will be able to claim unfair dismissal from day 1 so it would seem crazy not to make the most of this flexibility while you can.
If you would like us to help you exit problem employees while minimising the legal risks, please contact Cerys Tyson: ctyson@keelys.co.uk