Unfair Dismissal: Qualifying Period
Generally, the right to bring a claim for unfair dismissal is available only to employees who have been dismissed and who have at least two years’ service. There are however exceptions where the usual qualifying period does not apply. If you have been dismissed but have less than two years’ service, read on to see whether your dismissal may fall within one of the exceptions which would make you eligible to bring an unfair dismissal claim.
Where the usual qualifying period does not apply
- Automatically unfair dismissals. In most cases where the dismissal is deemed automatically unfair there is no need for a period of qualifying service (see below for dismissals deemed to be automatically unfair);
- Medical suspension. If you are dismissed in circumstances where you would qualify for paid suspension on medical grounds, the qualifying period is just one month;
- Reserve forces. If your dismissal is connected to your membership of the reserve forces, there is no qualifying period. This does not mean your dismissal is automatically unfair.
- Political opinions or affiliation. If your dismissal relates to your political opinions or affiliation, again there is no qualifying period but again it does not mean that your dismissal is automatically unfair. The fairness of your dismissal must still be judged in the usual way.
What is a fair dismissal?
Your dismissal will be held to be fair if:
- Your employer shows that the reason (or principal reason) for your dismissal was for one of the following five potentially fair reasons: capability or qualifications, conduct, redundancy, breach of a statutory duty or restriction, or ‘some other substantial reason’ (SOSR).
- In all the circumstances (including the size and administrative resources of your employer), your employer acted reasonably in treating that reason as a sufficient reason for dismissal.
Automatically unfair dismissals
As stated above, there is no qualifying period of service in most, but not all, automatic unfair dismissal cases, meaning that you are protected from the first day of your employment. Cases with no qualifying period include the following:
- For reasons connected with pregnancy, childbirth, statutory maternity leave, statutory paternity leave, statutory adoption leave, parental leave, shared parental leave, time off for attending antenatal and adoption appointments or time off for dependents;
- For a health and safety reasons;
- For a reason connected with rights under the Working Time Regulations;
- For making a protected disclosure;
- In connection with an application for flexible working;
- Related to the national minimum wage;
- In connection with time off for study and training request rights;
- In connection with carrying out jury service;
- Related to status as a part-time worker;
- For trade union membership/non-membership or participation in trade union activities;
- In connection with exercising the right to be accompanied to a disciplinary or grievance hearing;
- Following selection for redundancy on any of the grounds listed above.
The above list is not exhaustive and you should seek specific legal advice about the relevant qualifying period applicable to your dismissal.
It is important to note that the reasonableness of your employer’s actions is not relevant for automatically unfair dismissals. If it is established that you have been dismissed for one of the reasons listed above the reason will always be deemed to be unfair.
Time Limits
There are strict time limits on presenting an unfair dismissal claim to the Employment Tribunal. Subject to the rules on the automatic extension of time for ACAS early conciliation, a claim must be presented within three months starting with the date your employment terminated. Time continues to run even if you have submitted an appeal against your dismissal and are awaiting the outcome.
Compensation
In most cases compensation will be made up of a basic award and a compensatory award. The basic award is calculated in a similar way to a statutory redundancy payment, based on a formula that takes account of age, length of service and the amount of a week’s pay (subject to a statutory cap).
The compensatory award is such amount as the tribunal believes is just and equitable based on your financial loss so will include any salary, pension and benefits lost to you until you obtain new employment. The compensatory award is generally capped at a year’s pay or (currently) £89,493, whichever is lower. However the statutory cap does not apply in certain cases including dismissal for health and safety reasons or for making a protected disclosure (whistleblowing).
Can we help you?
If you have an employment law issue please contact one of our specialist employment law solicitors at LincsLaw on 01522 440512 or visit our website at www.lincslaw.co.uk for more details on how we can help you.
Kathryn Bolton
Specialist Employment Law Solicitor
LincsLaw Employment Solicitors