Do I need two years of service to bring a claim for unfair dismissal?

In the UK, employment law offers various protections to employees, one of which is protection against unfair dismissal. Generally, to bring a claim for unfair dismissal, an employee needs to have at least two years of continuous service with their employer. However, there are important exceptions to this rule, and employees with less than two years of service may still have grounds to bring a claim under certain circumstances. This article explores these exceptions and the steps involved in bringing such a claim.

What is an unfair dismissal?

Unfair dismissal claims typically arise when an employee believes that their employment has been terminated in a manner that breaches Employment Rights Act 1996.

The two-year rule

Under the Employment Rights Act 1996, employees ordinarily need two years of continuous employment to qualify for the right to claim unfair dismissal. This rule is designed to balance the rights of employees with the operational needs of employers. However, it does not apply in all situations, and certain dismissals are considered automatically unfair, regardless of the length of service. Certain types of dismissals are deemed automatically unfair, and employees can bring a claim irrespective of their length of service. These include, but are not limited to, dismissals for:

Pregnancy and maternity related reasons

If an employee is dismissed for reasons related to pregnancy, childbirth, or maternity leave, this is automatically unfair. 

Health and safety activities

Dismissals related to health and safety activities, such as raising concerns about workplace safety or refusing to work in unsafe conditions, are automatically unfair.

Whistleblowing

Employees who are dismissed for making a protected disclosure (whistleblowing) about wrongdoing in the workplace can claim unfair dismissal. You would need to show that the disclosure that you have made qualifies as protected disclosure and that you were dismissed as a result of such disclosure. 

Trade Union Membership and Activities

Being dismissed for participating in trade union activities or for being a member of a trade union is automatically unfair.

Asserting a Statutory Right

If an employee is dismissed for asserting a statutory right, such as the right to receive the National Minimum Wage, to receive an employment contract, in respect of holiday pay etc, it is automatically unfair.

Discrimination

If your employment was terminated as a result of discrimination, for example because of your race, gender, age, religion, disability, sexual orientation or other protected characteristics, it may constitute discriminatory dismissal. Therefore whilst you may not be able to plead this as unfair dismissal claim, you may still be entitled to damages if such damages arise directly form your dismissal. In addition to this you may also be entitled to compensation for injury to feelings which is not available in simple unfair dismissal claims. You do not need two years of service to bring a claim for discriminatory dismissal.

Bringing a Claim

To bring a claim of unfair dismissal with less than two years of service, an employee must follow these steps:

1. Identify the Grounds: Clearly identify the reason why the dismissal is considered automatically unfair.

2. ACAS Early Conciliation: Before making a claim to an employment tribunal, the employee must notify the Advisory, Conciliation and Arbitration Service (ACAS) and go through the early conciliation process. This step is mandatory and aims to resolve disputes without the need for tribunal hearings. Acas must be engaged within three months less one day from the date of dismissal.

3. Submit a Claim: If conciliation fails, the employee can submit a claim to the employment tribunal. It is important that you do so within prescribed time limits.

4. Gather Evidence: Collect all relevant evidence to support the claim, including correspondence, witness statements, and any documentation related to the dismissal.

5. Seek Legal Advice: It is advisable to seek legal advice from an employment lawyer so that you can navigate the legal process effectively.