Rights of Qualifying Employees on Dismissal
Entitlement to Protection
Employees with two years of continuous employment - whether full or part-time - generally have had rights not to be unfairly dismissed.
This commences from when the employee starts work and continues until the end of the notice period.
Employment is presumed to be continuous unless you, as the employer, can demonstrate otherwise. Absence, or even leaving the job temporarily due to sickness, injury, lay-off or other reasons may or may not affect continuity. If there are successive periods of employment and non-employment, continuity of employment will be assessed by taking into account the relative lengths of those periods and the underlying intent/expectations of the employer/employee. Mutuality of obligation between the parties is relevant for this purpose.
Continuity of employment will also normally be assumed in the event of transfer of an undertaking (TUPE transfer).
If an employee is coming up to two years of service and you wish to review the position, remember that employees actually have unfair dismissal rights after 23 months and three weeks. This is because employees are entitled to a one-week statutory minimum notice period, and this will give the requisite service to bring an unfair dismissal claim.
Qualifying Period Inapplicable with Discrimination
Be especially careful where discrimination is alleged. In such cases, the two-year qualifying period does not apply. It should also be noted that there is no limit on compensation levels in such discrimination cases.