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Ask Employment Law |
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Remember: There is no substitute for legal advice on the actual
situation you find yourself in. The information posted on this site is for general
information only, is based on |
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Question: |
Is it true I have to be
employed for at least one year before claiming unfair dismissal? |
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Answer: |
Ordinarily,
in order to bring a claim of Unfair Dismissal, an employee needs to have at
least one year’s continuous employment with the employer. The issue of length
of service can be complicated if for example someone was working there first
as a temp hired via an agency before becoming permanent, and I don’t intend
to touch upon that issue here. Employers
would be advised to follow a default dismissal procedure before dismissing
any employees, even if their employees have less than one years service, even
if they are still on their probationary period. I
say this because there are occasions in which an employee can bring a claim
of automatic unfair dismissal despite not having one years service. I’m not
going to set out an exhaustive list of examples here. However a couple of
examples are: 1.
A parent exercises his statutory right to take time off to deal with
an emergency concerning a dependent at school (his son having had an accident
at school). If he is dismissed as a result that dismissal will be
automatically unfair and he will not need to have one years service to bring
a claim of unfair dismissal for the assertion of a statutory right under
S.104 of the Employment Rights Act 1996. 2.
An employee asserts the statutory right to take paid holiday
under the Working Time Regulations. As it happens the employee exceeded his
statutory entitlement pro rata for the year and not only does the employer
refuse but decides to dismiss him. The employee will still be able to claim
automatic unfair dismissal with less than one year’s service in this instance
because even though the employee misunderstood his statutory rights, as long
as he genuinely asserted the right, he will be protected if dismissed as a
consequence. Employers
should not forget that the employee may also have a claim of unlawful
discrimination or other claims for which s/he does not need one years service.
The lesson for employers is to always follow a fair dismissal procedure
before dismissing, regardless of the length of service. After all, if you
treat people fairly, they’re much less likely to sue you! See
also our page on fair disciplinary
procedure Last
reviewed: July 2010 |
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Employment
Solicitor Reculver Solicitors Tel
0207 324 6271 Regulated
by the Solicitors Regulation Authority ©
Reculver Solicitors. 2005- |
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