In April 2012 the length of service required for employees to claim unfair dismissal was increased from one to two years. Many business owners clapped their hands, thinking this would now make it easier to dismiss someone. We have several calls a week from nursery owners asking how they can dismiss someone with less than two years' service.
The first point to consider when dismissing employees is the relevance of the nine 'protected' characteristics as listed in the Equality Act: age, sex, sexual orientation, religious belief, maternity or pregnancy, gender reassignment, civil partnerships, race and disability. Be careful how you approach the dismissal - if it is perceived to be related to one of these characteristics then it is likely to result in a claim.
The second point to consider is whether you are dismissing the employee for any of the following:
- Bringing proceedings against the employer for breaking statutory employment rights.
- Refusing to forego a right under the Working Time Regulations.
- Seeking to enforce rights under the National Minimum Wage Act.
- Making a protected disclosure under whistle blowing legislation.
- Seeking to exercise the right to be accompanied at a grievance or disciplinary hearing.
- Health and safety breaches.
If so, then the dismissal could be considered 'automatically unfair'. If the employee can show that the dismissal was for one of those reasons they do not require two years' service for a claim.
Have you made the employee aware of the issues or their performance?
If you have and nothing has changed and you are confident that none of the above apply then I would recommend following best practice rules and inviting the employee to a meeting.
Explain that you have discussed with them the issues and unfortunately nothing has changed and therefore you will have to dismiss them. You will need to give them their contractual notice and any holiday pay that is due. Give them the statutory right to be accompanied by a trade union representative or colleague and also give them the right to appeal.
You can just invite them in and dismiss them but you may want to consider what this may do to your reputation as a business.
It could very soon get around that you sack people unfairly. Treat people fairly and reasonably, no matter what your personal opinion of the situation.
Following best practice also means you are protecting your nursery if, following the dismissal, the employee decided to bring a claim for discrimination.
