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What happens if I dismiss an employee just before they reach 2 years service?

06 March 2019

Whilst certain claims do not require a qualifying period of service, such as discrimination claims, certain claims, such as Unfair Dismissal, do. As you may be aware already, as a basic rule, in order to make an Unfair Dismissal claim, an Employee needs to have a minimum of two years service.

But what happens if the dismissal takes place just before the 2 year anniversary without notice?

Once an employee has been continuously employed for one month, they are entitled to receive a minimum period of notice from their employer- this is known as a statutory minimum notice period. The statutory minimum notice period for an employee with less than 2 years service is 1 week. However, the parties may agree longer notice periods under the terms of a contract.

In cases where the employer or employee terminates the contract of employment, either with or without notice, the Effective Date of Termination (EDT) may be extended to determine if an Employee has the qualifying period for an unfair dismissal claim. For example, where the contract is terminated by the employer, the law requires you to take the date when notice was given by the employer and replace the notice given with the statutory minimum notice period. So as outlined above, the Effective Date of Termination would be 1 week from the date notice was given.

In cases where no notice was given by the employer, you are required to take the date when the termination took effect and add on the statutory minimum notice period (again 1 week). So, if an employee is dismissed 1 week shy of their 2 year anniversary with no notice, they will qualify for an unfair dismissal claim, as well as a potential wrongful dismissal claim, which is where the correct notice period is not given to the employee.

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