Most workers are aware of the existence of their right to claim unfair dismissal if their employment is (unfairly) terminated. However, although workers are aware of the abstract nature of the right, they are often unaware of the most basic content of the right to claim unfair dismissal. One of the most basic elements is that an employee must have at least 12 months’ continuous service to qualify for their rights related to unfair dismissal. This article will take a look at what employees should have regard to when considering making a claim for unfair dismissal.
- Is it always 12 months?
- What do I do if I don’t have 12 months continuous service?
- What is automatic unfair dismissal?
Is the qualifying period to claim unfair dismissal always 12 months?
If you’re dismissed with notice then the period that you need to work for is 51 continuous weeks. If you have this period of continuous employment then the last week is “filled” by your statutory minimum notice (or your contractual notice, if greater). The statutory minimum notice is 1 weeks’ notice if you’ve had more than one month’s employment at your employer.
If you’re dismissed without notice then the period that you need to have worked for to qualify to claim unfair dismissal is 52 continuous weeks (or 12 months).
However, as we’ll see below, in certain circumstances you do not need to have worked for the necessary 52 (or 51) weeks.
What do I do if I don’t have 12 months continuous service?
If you don’t have 12 months continuous employment then your claim for unfair dismissal will fall at the first hurdle unless the nature of your dismissal allows you to claim “automatic unfair dismissal” under the Employment Rights Act 1996. If you fall within the range of circumstances which allow you to claim automatic unfair dismissal then you do not need the 1 year’s qualifying period to claim unfair dismissal. Further, the compensation that you can be awarded is not capped. We’ll now take a look at what automatic unfair dismissal is.
What is automatic unfair dismissal?
You may have been automatically unfairly dismissed if the circumstances of your dismissal meet any of the following criteria (among others):
- You’re dismissed for a reason connected with your pregnancy, childbirth or taking maternity (or paternity, adoption, parental, or dependent care leave); or
- You‘re dismissed for a health and safety reason; or
- You’re dismissed for acting as an employee representative on a TUPE transfer; or
- You‘re dismissed for a discriminatory reason; or
- You ‘re dismissed for a reason related to the National Minimum Wage
As above, if you’re dismissed for any of the above reasons then you may have been automatically unfairly dismissed.
This also applies if you’ve resigned from your employment for any of the above reasons (i.e. it’s a case of “constructive unfair dismissal”).