Dismissing staff with less than two years' service: what are the risks?

What should be considered before dismissing school staff who have been employed for less than two years?

Employers within the independent education sector will be well aware that employees have the right not to be unfairly dismissed if they have two years' qualifying service. The rights of employees without two years' service, and the rights of workers may not be as well known. In this article, we consider the risks when dismissing a member of staff who has been employed at the school for less than two years.

Employees don't always need two years' service to bring an unfair dismissal claim

There are a number of circumstances in which an unfair dismissal claim can be brought by an employee without two years' service. Examples include dismissals related to family-related rights, "blowing the whistle", raising health and safety issues, trade union membership or exercising the right to be accompanied. The usual cap on compensation for unfair dismissal claims of one year's gross salary does not apply when an employee is found to have been dismissed for raising health and safety issues or for making a protected disclosure.

Might there be a discrimination claim?

Discrimination claims based on a protected characteristic such as sex, age or disability can be brought by employees, workers, job applicants and former staff regardless of length of service. Schools should be alert to the fact that compensation awards for such a claim are potentially unlimited.

Can you be sure an employee has less than two years' service?

It is not always obvious when an employee has accrued two years' service. Where there is a break in employment of at least "a week ending with a Saturday", this will normally be enough to break continuity of service. However, if there is a "temporary cessation of work" (for example where a teacher is not employed over the Summer holiday) continuity may not be broken. The Employment Appeal Tribunal has ruled that a one month gap between fixed term teaching contracts was not sufficient to break continuity of service for the purpose of an unfair dismissal claim.

Schools should take a cautious approach to dismissal where claims may be brought by a member of staff. This would involve engaging in a proper procedure, including the right to be accompanied, consultation and a right of appeal. Ensure that union representatives are involved where relevant and keep a full paper trail of decisions and actions taken.