When it is unsafe to dismiss within 12 Months of commencement of employment

Normally an employee must have completed one years continuous employment to be able to present a complaint of unfair dismissal. Parliament has, however, shown an increasing willingness to introduce areas where a dismissal will be regarded as automatically unfair even where the one year qualification has not been reached.

As the maximum compensatory award for unfair dismissal now stands at £53,500.00 (from lst February 2003) it is increasingly important that careful consideration is given before dismissing an employee with less than one years continuous service.

The special categories of automatically unfair reasons for dismissal which do not require twelve months continuous service are :-

• Dismissal of an employee in connection with leave for family reasons which now includes pregnancy, maternity leave, parental leave and time off for dependants.
• Dismissal for reasons connected with health and safety responsibilities or for raising health and safety issues.
• Dismissal in connection with an employee’s rights under the working time regulations.
• Dismissal of a shop or betting worker for refusing Sunday work.
• Dismissal for reasons relating to an employee’s performance or his or her duties as an occupational pension fund trustee.
• Dismissal for reasons relating to an employee’s performance of his or her duties as an employee representative.
• Dismissal for whistle blowing.
• Dismissal for asserting a statutory right (e.g. right to a pay statement or statutory minimum notice)
• Dismissal of an employee in connection with the national minimum wage legislation
• Dismissal in connection with an employee’s rights to Working Families Tax Credit or Disabled Persons Tax Credit.
• Dismissal for participation in official industrial action.
• Dismissal for exercising the right not to be treated less favourably under the part time workers regulations.
• Dismissal for exercising the right to be accompanied to a disciplinary and grievance meeting.
• Dismissal for Trade Union activities, membership, recognition and bargaining.
• Dismissal by way of selection for redundancy for any of the above unfair reasons.

The burden is upon the employee to satisfy an employment tribunal that the reason for dismissal is one of the above and which avoids the operation of the one year rule.

Dismissals which are discriminatory on the grounds of race, sex or disability are also not covered by the one years service rule.