If you commenced employment with your employer prior to 6 April 2012 then you need to have had one year’s continuous employment with your employer to qualify to claim unfair dismissal. If you started employment with your employer on or after 6 April 2012 then the period of continuous employment required increases to two years. Whether an employee qualifies to claim unfair dismissal or not is normally fairly clear unless they’ve either had a protracted period of time off work which truncates their period of continuous employment or if their employment falls just short of the necessary period of continuous employment. In a recent question submitted to Direct 2 Lawyers this issue was brought up. We’ll address the facts, the law, and what options the person has below.
The D2L user was employed for almost one year. Just before he achieved one year’s employment his employer drew up a list of (he argued baseless) allegations against him and fired him without conducting an investigation or a disciplinary hearing. He was eight days’ short of one year’s continuous service when he was dismissed without notice and he suspects that he was dismissed so quickly to prevent him from qualifying from his unfair dismissal rights.
Read more: Explanation of unfair dismissal
Under s.94(1) of the Employment Rights Act 1996 employees with more than 1 years’ continuous employment (2 now, as above) have a right not to be unfairly dismissed from their employment. The D2L user was an employee – he had a contract of employment. His dismissal also appears to have been prima facie unfair – he was dismissed without any form of investigation or disciplinary procedure (which is contrary to the ACAS Code of Practice) and if, as he suggests, the allegations were baseless then there is also an argument that he was substantively unfairly dismissed (i.e. that his dismissal wasn’t within the range of reasonable responses in the circumstances).
The issue here is whether the D2L user has sufficient continuous employment to qualify to make an Employment Tribunal claim for unfair dismissal (N.B. there is no requirement for a period of continuous service if you have a claim for automatic unfair dismissal). Continuous employment is measured by the number of weeks’ employment the employee has – they must have 52 weeks. The important issue for this employee is that any week in which there is a contract of employment governing the employment relationship will count toward the period of continuous employment – even if it was just one day of that week. The employee can argue that as the allegations were baseless (and would therefore not be misconduct, let alone gross misconduct allowing the employer to terminate his contract of employment without notice) he should have been given his statutory one weeks’ notice. This therefore reduces the “gap” to 3 days and the crucial point is whether these 3 days spanned into the next week or not. If they did then he may have 52 weeks’ continuous employment.
Read more: How to prepare your unfair dismissal claim
There is a presumption of continuity in Employment Tribunal cases – the employee’s employment is presumed to be continuous unless the employer can show otherwise.
What options does the person have?
- Appeal his dismissal; and/or
- Suggest a compromise agreement to his employer; and/or
- Issue a claim in the Employment Tribunal; or
- Do nothing