A few days ago I was telephoned by a prospective new client: she has been working for her employers for just over eleven months and was expecting her boss to terminate her employment at any moment. She told me she had worked well, been very flexible when required, worked unsociable hours and taken a cut in her hours when the business fell on hard times. In return her boss criticised her (unfairly I am told) for not having the right attitude and spending too much time on her social life. Leaving aside the issue of who was telling the truth, what is her legal position if her employment is terminated before she has gained 12 months continuous employment experience? What rights has she got?
The regrettable answer is not many.
As the law currently stands (and has since 1999), an employee must (in most cases) have 12 months continuous employment to be able to bring a claim for unfair dismissal. This can be shortened slightly by the length of the statutory notice period (one week), assuming the employer is unable to pay the notice period “in lieu” of working the notice, meaning that the employer has to dismiss before the 51st week of employment. If it is possible to allege that the dismissal is “automatically unfair” (because of a discriminatory reason or certain other prescribed situations) then there is no period of qualification required.
However, if she is dismissed before then, her only entitlement will be to her notice period; either to work it if it is an “ordinary” dismissal or, for her notice pay if she is summarily dismissed and told to leave the premises there and then. In the latter case she would have a claim for breach of contract, aka “wrongful dismissal” (note: not to be confused with unfair dismissal which is something else entirely) the compensation for which would only be for her notice monies.
That is a claim she could bring at an Employment Tribunal, which has jurisdiction to hear breach of contract claims up to £25,000.
How much notice is she entitled to receive? That will depend on what her contract of employment says. Assuming there is no contract and the employer has not stated what the notice period is, then she will only be entitled to statutory notice, under the Employment Rights Act. That means for an employee with over one month’s service but less than one year she is entitled to one week’s notice. That increases to one month covering one to four years’ service (therefore two years equals four weeks, as does four weeks service) and then increases by one week per year of service up to 12 weeks.
In other words, at 11 months service she would be statutorily entitled to one week’s money in the absence of anything to the contrary. She would not be able to bring a claim at an ET to say that her employer had acted unfairly in dismissing her.
Until a few years ago it was thought that a claim could be brought against an employer who dismissed in these circumstances, in order to prevent the employee from gaining her employment rights. The case of Raspin v United New Shops Ltd 1999 held that an employee dismissed without being given proper notice may be able to claim damages for the loss of unfair dismissal rights if they would have gained those rights had proper notice been given. However, the case of Wise Group v Mitchell EAT 2005 decided this was not correct. Thus employees therefore remain vulnerable to being sacked at the eleventh hour (well month, but you know what I mean).
This is all particularly relevant now because the government has launched a consultation on employment law practice and procedure. One of the most high profile proposals is for the 12 month period to be extended to 24 months. I think this is misguided, wrong and likely to be counter-productive, for reasons I set out here in my last post. It will lead to more employees, many of them in vulnerable positions being exploited as this particular lady was and deny them proper legal redress.
Thinking aloud for a moment (and it might seem crazy to suggest it because it is well out of tune with the current prevailing anti-employee climate) perhaps we ought to consider reducing the qualification period for unfair dismissal to zero months? The qualification period has moved around a fair bit since unfair dismissal was created as a cause of action in 1971: then it only required six months’ continuous service until being increased to one year in 1980 (although two year service was then needed for small firms), two years in 1985 and then back to one year in 1999. In other words, it’s not set in stone but is something of a political football to be kicked around by the whim of the government.
A reduction to zero months would bring it into line with anti-discrimination provisions and, bizarrely, although it would lead to an increase in unfair dismissal claims, might actually lead to a reduction in the number of weak discrimination claims that are brought by employees because they have no other cause of action. It would be interesting to learn how many discrimination claims are brought by employees within their first twelve months of employment. Does anyone know of any statistics?
Madness? Let me know what you think.