Employment Law - The 2 Year Probation Period


It is a common misconception between employees that you are automatically entitled to launch a tribunal claim should your employer not follow the correct dismissal process or procedure. Indeed it seems logical to expect, that an employer should be have to follow the correct procedure when dismissing someone.

However, as an employee, should you find yourself being dismissed in a way which you feel is enough to warrant a tribunal claim, you may well be in for a shock.

As of 6th April 2012 a two year qualifying period has been in force (upped from one year). As an employee you need to have worked for a period of two years or more before you are able to bring a claim for unfair dismissal to a tribunal. This qualifying period unless in certain exceptions, means that there is a very low risk to an employer if it does not follow the correct procedure when dismissing an individual.

Not all is lost should an employee find that they do not meet the qualifying period, as previously mentioned, there are exceptions to this rule. However, these exceptions can prove to be difficult to fit into. The list of exceptions is not exhaustive, but below is a list of some of the most commonly used.

Discrimination:

A dismissal which takes place for reasons of a discriminatory nature is actionable in front of a tribunal regardless of whether or not the qualifying period has been met. Compensation is calculated in broadly the same way as an unfair dismissal claim, but there is no cap to the amount that can be awarded due to the nature of the claim. Where a finding of discrimination is made, additional compensation for the hurt of feelings is also available.

To bring a claim for discrimination, it must be proved that the reason for the dismissal was linked in any way to a protected characteristic. The protected characteristics are the following:

  • Age

  • Disability

  • Gender reassignment

  • Race

  • Pregnancy or maternity

  • Marriage and civil partnership

  • Sexual orientation

  • Religion or religious belief

Should an employee be able to prove that the dismissal was linked to any of the above characteristics then this circumvents the requirement to fit into the qualifying period.

Contractual disciplinary or redundancy policy:

Some employers have their dismissal or redundancy policies written into the contracts of employees. If such a process is written into a contract and the employer does not follow said process, then a claim for breach of contract arises and the employee will be in a position to claim damages for the breach of procedure. This would be through a claim for breach of contract and so no qualifying period would apply.

Trade Union Representative:

If an employee is dismissed for reasons of belonging to a trade union, being a trade union representative, or taking part in trade union activities, then the dismissal will be unfair regardless of the amount of time that the employee has worked for.

Making a protected disclosure:

What is more commonly known as whistleblowing; if an employee is dismissed for making a protected disclosure then again the qualifying period does not apply. A protected disclosure is a disclosure of information by an individual, which that individual reasonably believes shows that one or more of the types of malpractice identified in the relevant legislation has taken place, or is likely to take place. Therefore, if an employee makes a disclosure and is subsequently dismissed for that reason, then the qualifying period is not needed. For a disclosure to fit into the relevant types of malpractice it has to fit into one of the following categories:

  1. Danger to the health and safety of an individual

  2. Damage to the environment

  3. Criminal offences

  4. Breaches of legal obligations

  5. Miscarriages of justice

  6. A deliberate concealment of any of the above

As you can see, the two year qualifying period provides a huge amount of difficulty for employees. The exceptions outlined above are specific and hard to fit into. This means that effectively an employee has to serve a two year probation period before any rights are confirmed onto them at all.

Employment law is seen by many employees as an avenue to assert their rights as workers, and something which enables them to stand up to the actions of their employer. The reality is that employment law in relation to unfair dismissal may indeed do the exact opposite. Unless an employee has worked in their job for over two years, or failing this, fits into any of the specific and narrow exceptions available to the qualifying rule an employee’s options are extremely limited should their employer dismiss them in an improper way. Some people may think that this is unfair and in my opinion I would agree.

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