Rights of Non-Qualifying Employee on Dismissal

If an employee is not a qualifying employee (i.e., they do not have two years' continuous service), they have no access to an employment tribunal to complain that dismissal was unfair.

They can, however, claim in the employment tribunal and Courts for damages for wrongful dismissal, based on breach of the employment contract. For wrongful dismissal, the employee must show that you, as the employer, were in breach of the employment contract e.g., by dismissing an employee without giving them a notice period or notice pay. Because of the employment tribunal compensation limits which apply to all unfair dismissals and for breach of contract, senior executives may prefer to use the Courts, where, for instance, the unexpired term of a contract or a notice entitlement under a fixed term contract could result in the award of significant compensation for breach of contract.

Employees with less than two years' service may, however, claim that their dismissal is discriminatory (on the grounds of sex, race, disability etc.) and therefore unlawful, or that it is automatically unfair for one of the reasons specified in the legislation. Automatic unfair dismissal relates to an employee’s assertion of their statutory rights and so it is automatically unfair if an employee is dismissed because, say, they are pregnant or on maternity leave or took action on a health and safety issue.