A dismissal should be the very last resort an employer has to make, it’s never an easy decision to make but sometimes it is inevitable. With a short service dismissal, you can jump some of the hurdles a standard dismissal requires, but that’s not to say it won’t come without its own problems you’ll need to navigate.
What is short service dismissal?
Short service dismissal is the term used for letting an employee go when they have worked for you for less than two years.
In this timeframe the employee does not have the full rights to claim unfair dismissal. This means you can typically speed up the usual dismissal process. However, this will depend on your company's usual disciplinary procedure.
Even so, you need to ensure you follow a sound procedure. Failure to do so may put you at risk of allowing the former employee to claim ‘automatically unfair dismissal’, or dismissal by discriminatory means. It is important to be aware of this, as this type of protection starts as soon the individual is employed.
What are the legal implications of short service dismissal?
It’s not always straightforward to dismiss staff through short service. Employers need to be aware of the legal implications, as your reasons behind dismissing your employees could end up treating them unfairly.
While ex-employees are able to claim unfair dismissal for up to three months following their dismissal, there are other claims that can be raised if the dismissal is considered ‘automatically unfair’ or discriminatory.
What are ‘automatically unfair’ reasons for dismissal?
An automatically unfair dismissal occurs when the dismissal breaches an employee's statutory legal rights. There are around 60 grounds for which an employee can claim automatic unfair dismissal. Some of the most common grounds include:
This is related to dismissals regarding maternity or paternity, shared parental leave or adoption leave. If an employee feels they have been dismissed on the grounds of taking their legal right, they can automatically claim unfair dismissal.
Refusing to give up certain rights
There are several statutory rights which allow an employee to automatically claim unfair dismissal. An example of this may be refusing to work over 48 hours a week on average or insisting to be paid the national minimum wage.
Refusal to carry out certain tasks
You cannot dismiss a staff member on short service if they reasonably refuse to carry out certain tasks that can put them or others at risk in the workplace. This can involve lifting heavy materials without proper equipment, or operating machinery without the correct safety qualifications.
Trade Union membership
You also cannot dismiss an employee for joining or by being affiliated with a trade union. In fact, all employees have the right by UK law to be part of a trade union, leave a trade union, or be a member of one or more trade unions.
Dismissal because of a protected characteristic
When going through your dismissal process be aware that you are not letting an employee go because of a protected characteristic.
- Gender reassignment
- Pregnancy and maternity
- Sexual orientation
- Religion or belief
- Marriage and civil partnership
It’s important to consider these exceptions when dismissing a short serving employee. With discrimination claims there is no ceiling on the amount of compensation that can be awarded if a claim is successful.
What is a good process for dismissal?
The best way to make sure you don’t fall foul to an automatically unfair dismissal or discrimination claim is to make sure you have a well thought out dismissal process.
1. Conduct a thorough investigation
Before dismissing an employee, you should conduct a thorough investigation of any wrongdoings or breaches of contract that they may have elicited. You cannot dismiss them until you have collected sufficient required evidence. If you believe an employee has committed an offence you must attempt to work out the truth behind it. You can suspend the employee, but you must pay them until they’re formally dismissed.
2. Draft a well thought out initial letter
Once you have collected the evidence you should draft a well thought out initial letter detailing the reasons for dismissal. If this is for a breach of contract, state the reasons. If it is redundancy for financial reasons these must also be clearly laid out.
3. Conduct a meeting
Arrange a meeting to discuss the dismissal with the employee. You cannot decide on the dismissal until this meeting is held.
You should also give the employee a reasonable amount of time to prepare, and rearrange the meeting if needed.
4. Inform the employee of your decision
Once you’re able, send your dismissal letter or email to the employee with your decision. You must mention that they can appeal the decision and how they should go about doing so if they would like to appeal.
Give the employee a chance to appeal
Try to have someone who didn’t originally dismiss the employee decide the appeal. Also, make sure the employee is aware of their right to be accompanied to meetings.
Short term dismissal letter example
If you're struggling to put together a short term dismissal letter, use our template below. Simply replace the fields in square brackets below and format the letter accordingly.
Dear [Employee Name]
I am writing to confirm the decision to terminate your employment with [Company Name].
The reasons for this include [Enter reasons].
You notice period will be [Enter amount of notice]
SELECT AS APPROPRIATE
You are required to work your notice period and your employment will end on
You will be [placed on garden leave / suspended] for the duration of your notice period. Your employment will end on [Enter date]. During the [garden leave / suspension] you will be required to comply with the terms applicable to [garden leave / suspension] contained in your contract of employment. In particular you will not be required to attend work and should not make contact with clients or colleagues other than myself.
The company has exercised its decision to make payment to you in lieu of notice and therefore your employment will terminate with immediate effect on [Enter date].
Your final salary will be paid to you in line with the normal payroll process.
You will also receive payment in lieu of any annual leave which you have accrued but not taken during the current annual leave year up to the date of termination.
Return of the company property
You are required to return all company property by [Enter date]. This includes, but is not limited to the following:
- [Enter items of company property]
The company reserves the right to make a deduction from any monies, including wages, payment in lieu of notice or annual leave and bonus or commission payable, an amount to cover the cost of any company property lost or damaged.
[Add closing statement]
[Enter job title]
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Author: Andy Stewart