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.
[...] This post was mentioned on Twitter by Michael Carty and Michael Scutt, Paul L Latreille. Paul L Latreille said: Unfair Dismissal Without 12 Months Continuous Employment Experience? | Practice & Procedure | Jobsworth by Micha… http://bit.ly/gXWHJ3 [...]
Hi Michael
A great blog. I agree with you about the zero month qualification period, especially as most employers have a 6 month probabtion period when they can legitimately end the employment contract. This leaves a 6 month gap when and employee has been confirmed in post, yet has few rights.
I also found from the CAB research that dismissal in the first year was a common complaint. By reducing it to a zero month qualification period, recruitment practices may also improve. I always encourage clients to spend as much time as possible at the selection stage to ensure they pick the right candidate – as it’s much easier to say no before you employ, then spend time trying to get rid of the when they start!
Thanks Hannah. You make a good point about probation periods and employers having to improve their practices. However, Boris Johnson has stoked the flames again in the Telegraph today with reference to the “bottom slapping” case. I think we might be swimming against the tide!
Kind regards
Hi Michael,
Great blog that makes some very valid points. You say, “If it is possible to allege that the dismissal is “automatically unfair” (because of a discriminatory reason….then there is no period of qualification required.”
Can I ask what the specific statutory reference for that is – I assume this is somewhere i the ERA 1996 or the Equality Act but I couldn’t actually see this – just wondering if you could clarify?
Cheers
Jon
Thanks Jon, sorry to take a while to come back to you.
s.108 of the ERA 1996 is the reference. I should say that you won’t find the phrase “automatically unfair dismissal” in the ERA – it’s a shorthand term.
I hope that helps, although please note that I’m not giving legal advice to you in saying this. If you have an issue over unfair dismissal, you should take legal advice on your specific situation and not rely upon anything written in this blog.
Thanks for the comment though; much appreciated.
Kind regards
Michael,
Thanks so much for the reply. I must stress that the question is not based on any actual events – I have no issue with any potential employment claim and am not seeking any legal advice, I am more of a mature student with an personal interest in employment law.
I can see the s.108 exemptions but in a book I have on employment law it does not ‘specifically’ cite for example disability discrimination. Unfortunately my book is from 2008 so obviously pre-dates the Equality Act 2010.
I must stress this is purely hypothetical – but would be so grateful if you could clarify this for me s.108 is a large section.
Say an employee is dismissed because he is disabled. At the EDT the employee does not have 12 months continuity. I know the employee could submit a disability discrimination claim BUT, could the hypothetical employee actually submit a claim for unfair dismissal (in the meaning given in s.94 ERA) also and if so exactly which part of s.108 allows this?
I thank you profusely if you take the time to answer and stress once again that (honestly) this is not related to any actual events.
Kind regards
Jon
An extension to 24 months would certainly bring more weak discrimination claims however much of these would be sifted out at the PHR stage, and I would assume the overall drop in unfair dismissal claim would outweigh any increase in the weak discrimination claims.
I have just been given my notice 11 months into employment. My employer effectively used me to get their new business started. Took my 16 years of industry specific contacts and benefited from my relationships and is now trying to enforce restrictive covenants against me to prevent me from approaching or working with those companies and contacts I personally brought into the business.
I was given glowing appraisals at 3 months (probationary passed) and 6 months and was never once given a verbal or written warning regarding conduct or performance.
This was simply a case of using my experience and skills in the short term and once established being able to remove my salary from the cost base of the company.
I recruited a full team and trained others in the various roles within the team so they will now promote one of those people into my role or go and hire a cheaper alternative.
This is where the problem exists and people like me should be afforded more protection against dismissal when there is no reason in terms of conduct or performance and no negative employment record.
I was 1 month away from end of year bonuses based on successful sales targets being achieved and now I have been informed that these were discretionary and I will not be paid any more than my notice period basic salary.
Employers still hold the trump cards!
Phil
Hi Mr. Scutt
Great job you are doing. I have question, I work for company for well over 4 years, with the first and second contract being fixed for 6 months apart. and after these two fixed contracts the employer never wrote to me but I was still working for then until after three when they wrote to me saying, my contract has ended due flux of time and benefits was given to me. they said the first contracts were temporal, even for the three years I worked was considered as temporal. what is your comment on this matter?
best regards
eddie
Thanks Eddie,
I don’t give legal advice through this blog I’m afraid. As a general rule it is only when fixed term contracts are renewed past their fourth anniversary that they “convert” to permanent contracts, but there may well be other issues in your situation which need to be borne in mind. If you are worried about your situation, please do get in contact with me via my firm – my email is michaelscutt@dalelangley.co.uk.
Best regards
Michael Scutt