He hasn't been here for two years can't I just dismiss?

If an employer dismisses an employee without good reason and/or without following an appropriate process, the employee can potentially raise an Employment Tribunal claim for either wrongful or unfair dismissal. However, in order to raise a claim for unfair dismissal, the employee will be required to satisfy a Tribunal that:-

• they were an employee, whether part time or full time;
• they had the necessary continuity of service (normally two years' continuous service) to bring a claim for unfair dismissal;
• they were dismissed.

There are certain circumstances where employees’ with less than two years' service can bring a claim for unfair dismissal. An example of an exemption is dismissal for health and safety reasons, as a result of whistleblowing.

Here are a couple of recent examples,

Chemistree v Gahir UKEAT/0449/12/JOJ

This case involved a pharmacist, Gahire, who during the course of her employment sent emails raising 17 concerns about health and safety and failures to comply with legal obligations. Her employers responded agreeing to deal with any necessary changes.
However after a series of disputes Gahir was dismissed just 18 days after her start date. Chemistree claimed that there had been a breakdown in mutual trust and confidence between the parties . Gahir claimed she had been subject to detrimental treatment and made a claim as a whistleblower.
At Tribunal it was found that some of the information in her emails amounted to protected disclosures, and that as a result she had been subject to detrimental treatment and could make a claim as a result of the protection offered to whistle blowers. The decision was appealed and the Employment Appeals Tribunal whilst disagreeing with part of the original Tribunal’s finding  upheld the claim for unfair dismissal.

Wilbourne-Kay v Access Offshore Marine Limited

Mr Dean Wilbourne-Kay, 47, worked for 11 months for Grimsby firm Access Offshore Marine Limited as a deck hand and cook until he was dismissed on 31 May 2013 for – the firm contended – alleged unsuitability for the role that he was undertaking. However, Mr Wilbourne-Kay subsequently made an Employment Tribunal claim for unfair dismissal and detriment due to protected disclosure, alleging that the reason that the firm had given him for his dismissal was a sham and that the firm hadn’t carried out a proper procedure in dismissing him (among other things).
The claim came before the Employment Tribunal in Lincoln earlier this year, and Mr Wilbourne-Kay gave evidence that the following had occurred before the termination of his contract of employment:

1. That he had not been provided with a written contract of employment
2. That he had complained to his manager that he had to work with a drunk crew member
3. That he had complained to his manager that he had not received sea survival training but was told “never to mention it again” and to “f*** off”
4. That he had been subjected to aggressive behaviour from the directors of the firm, and that Mr Andrew Hogg (one of the directors) had become aggressive and threatened to knock him out if he didn’t turn up for work
5. That Mr Hogg had also threatened to stab Mr Wilbourne-Kay to death and dump his body at sea because Mr Hogg had reported the firm to the Maritime Coastguard Agency

The Employment Tribunal ruled in Mr Wilbourne-Kay’s favour, holding that he had been unfairly dismissed. The Tribunal found that the Claimant was subject to various detriments because he had made protected disclosures, and that Access Offshore Marine Limited had failed to provide written particulars of employment. Mr Wilbourne-Kay was  awarded £16,452.79 as compensation for loss of earnings over the 39 weeks between his dismissal and the Tribunal hearing.

NOTE: There are other exemptions to the two years continuous service rule. It is advisable to seek advice from an RML before any disciplinary action is taken against an employee is certainly before a decision is made to dismissed.

NOTE: RML provides its members with free employment contracts and employment handbook. It is a legal requirement to provide employees with written particulars of employment, contact RML if  you require further information on the Employment Contract and handbook.