We get asked this question a lot by those employers who are aware that, as a rule, an employee requires a minimum of two years’ continuous employment with an employer in order to bring a claim for unfair dismissal. Dismissing an employee without following a correct procedure (which effectively involves warning and consultation) would, from a legal perspective, almost always be unfair. However, if the employee does not have the right to complain, the thinking seems to be that it does not really matter if the dismissal is potentially unfair, since the employer is unlikely to face any repercussions.
However, it is important to remember that there are certain types of unfair dismissal claim that an employee can pursue even if she does not have the minimum requisite period of service with her former employer. In particular, employees who are dismissed for asserting a statutory right, or for whistleblowing, can benefit from unfair dismissal protection even if they have been employed for less than two years. Individuals can, and do, get creative by framing their claims to benefit from these exceptions to the general rule. Moreover, there are a variety of other statutory employment rights that do not require any minimum period of continuous employment before they can be relied upon – most notably, anti-discrimination rights.
In truth, it is generally not hard, or even particularly time consuming, for an employer to follow a fairly basic dismissal process that could afford it significant protection in the event that a former employee brings a claim in the future. Even if that claim did not encompass unfair dismissal, it is not difficult to see how it could benefit the employer’s defence of, say, a discrimination claim if it appears to have acted fairly and reasonably in relation to the dismissal of the former employee even, if it did not strictly “need” to do so. It is also worth considering what negative impact an “unfair” dismissal might have on the remaining members of the workforce, even if the dismissed employee has no right of recourse herself.
Turning back to the question posed at the top of this article, our advice to the employer would be to give careful thought as to whether there are any claims that the employee might have grounds to bring against her employer. It is acknowledged that, if the employer perceives the risk of a claim to be small, its commercial and operational imperatives may lead it to conclude that there is no need to follow a correct dismissal process. However, in our view, 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.