The general rule is that only employees who have been employed continuously for two years or more can bring a claim of unfair dismissal in the employment tribunal if their employment is terminated. However, there are some important exceptions to the so-called “two year rule” which can be extremely helpful for individuals who might otherwise have no means of redress against their ex-employer.

Disapplying the two year rule

The qualifying period of two years has been in force since April 2012, prior to this the qualifying period was only 12 months. This two year period significantly reduces the number of people able to bring a claim of unfair dismissal, which is one of the most popular claims brought in the employment tribunal. Employers are obviously aware of this deadline and will usually terminate an employment contact before the two year anniversary in order to reduce their litigation risk.

However, other than attempting to prolong any dismissal process in order to get over the two year line, there are other ways that an individual may be able to bring an unfair dismissal claim, even if they do not have two years’ qualifying service. This is by relying on one of the relevant automatic unfair dismissal reasons set out in the legislation.

Automatic unfair dismissal

The Employment Rights Act 1996 sets out various scenarios in which an employee will be regarded as being automatically unfairly dismissed (section 108). If one of these applies then an individual can usually bring an unfair dismissal claim without having to show that they had two years’ service.

In addition, if such a reason for the dismissal can be shown then a tribunal will automatically rule that the dismissal was unfair; there is no need to show that the employer acted unreasonably or failed to follow a fair procedure. This makes it significantly easier for an individual to win their case.

The list of potential automatic unfair dismissal reasons is long and complex. Below we paraphrase the ones which are likely to have the widest application.

It is important to note that the reason why someone was dismissed must be for one of these reasons and that is not always an easy thing to demonstrate factually. It is automatically unfair to dismiss someone for a reason connected to:

  • pregnancy, childbirth or statutory parental leave rights
  • whistleblowing i.e. for making a protected disclosure
  • health and safety
  • refusing Sunday working (shop or betting workers)
  • asserting rights under the Working Time Regulations or National Minimum Wage Regulations
  • performing functions as an occupational pension trustee or an employee representative on a TUPE transfer or collective redundancy
  • making a flexible working request
  • carrying out jury service
  • blacklisting (in respect of trade union membership)
  • an employer’s duties under the auto-enrolment pension regime or the contravention of those duties
  • status as a part-time or fixed-term employee
  • trade union membership (or non-membership) or participation in trade union activities or protected industrial action
  • breach of an exclusivity clause in a zero hours contract

Compensation

One further advantage, if an individual can show that they were automatically unfairly dismissed for a reason related to whistleblowing or health and safety is that the usual compensation cap for unfair dismissal does not apply. The cap applies to all other types of automatic unfair dismissal claim however.

Comment

As with much employment legislation, the devil is in the detail when it comes to claiming automatic unfair dismissal. However, it is always worth taking advice to see if the facts of your case may allow for such an argument to be made, otherwise, the two year time limit is applied extremely strictly by employment tribunals. Importantly there are various other types of claim which may be brought without any qualifying period i.e. from day one of employment, including: discrimination, deduction from wages and equal pay so these should not be overlooked.

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Updates: For employers: Dismissing staff | Tribunals | Unfair and constructive dismissal | For employees: Unfair dismissal |

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