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Automatic unfair dismissal – a day 1 risk

A recent employment tribunal case serves as a reminder that, although employees with less than 2 years’ service do not have the right to claim ordinary unfair dismissal, they are still able to claim unfair dismissal if the reason for their dismissal is an automatically unfair one. In the case of Howson v Restore the claimant was employed as a manager at a charity shop. She worked 35 hours per week but was only paid for 30 hours per week by her employer. After having worked there for less than 6 months she queried this with HR and a director. Shortly after, she was invited to what was termed an ‘informal meeting’ at which she was dismissed. The tribunal found that the claimant’s emails about her wages were “the principal reason for her dismissal” and that she had been automatically unfairly dismissed for asserting a statutory right.

The employer may have thought that formalities could be dispensed with as the employee had less than 2 years’ service but, because the real reason for her dismissal was an automatically unfair one, it was still liable. Whenever employers are looking at dismissing employees with less than 2 years’ service they should take time to consider any risks of automatic unfairness and also any discrimination risk as legal rights in both of these areas accrue from day 1 of the employment relationship.