Less than one year’s service
James Medhurst | News
12 Apr 2010
As a general rule, tribunals do not have jurisdiction to hear claims of unfair dismissal which are brought by employees who have worked for less than a year. There are a few statutory exceptions and they can bring discrimination claims however long their service. In my experience, claimants overestimate the value of such claims, ignoring the fact that they are much harder to win in the first place and that they often result in less compensation. The latter conclusion may seem surprising given that, in theory, the principles for calculating the award remain the same. However, an obvious point is that the award for injury to feeling is likely to be smaller than average given the short period of time over which the discrimination took place.
A more subtle problem is nicely illustrated by the recent decision of the Employment Appeal Tribunal in Ward v Ashkenazi, in which compensation amounting to little more than a notice period of one month was upheld. As Judge McMullen points out in his judgment, the effect of the case of O’Donoghue v Redcar & Cleveland Borough Council is radically different in short service situations. The usual rule is that loss of earnings can be cut off at a certain point if it can be shown that the employee would have been dismissed fairly on that date. This is very difficult to prove because it is necessary to show some misconduct, illness or mass redundancy situation that makes dismissal almost inevitable, as well as being entirely justified.
However, for an employee with less than a year’s service, the test is a rather different one. There is no obligation for any dismissal to be fair and so all an employer has to show is that there would have been a subsequent dismissal for some reason, however arbitrary or capricious, so long as it is not one for which a statutory exception to the service requirement exists. It is not even necessary to prove that there would be a potentially fair reason. This is a considerably easier task and will greatly curtail the size of payouts.