But it’s not fair”. Those were not the words of my children, making their case for a later bedtime/not showering (delete as appropriate). Those were the words of a distraught client who just couldn’t understand why she had no recourse against her former employer for her unexpected dismissal. No prior warning, no letter, no discussion, no real explanation. She was simply called in to her manager’s office and told she was being dismissed with pay in lieu of notice. From employee to ex-employee in less than five minutes.
I have heard similar stories from others, grown adults who complain that their treatment at the hands of their employer has not been fair. What each have in common is that they feel aggrieved at the sudden and, at times, brutal nature of the termination of their employment.
The reason there is little they can do is simple: the qualifying period for unfair dismissal claims is two years. Only in certain circumstances will dismissals be considered automatically unfair, for example where the main reason for dismissal is connected to pregnancy or the employee making a protected disclosure. Until an employee has 103 weeks’ continuous employment, they have no protection from unfair dismissal.
Employers are neither required to follow their own internal disciplinary and dismissal procedures nor the Acas Code of Practice on Discipline and Grievance in cases of misconduct and poor performance. The increase in the qualifying period from one year to two years was originally proposed in the Government’s Resolving Workplace Disputes: public consultation and its aim was to “provide more time for employers and employees to resolve difficulties, give employers greater confidence in taking on people and ease the burden on the employment tribunal process”. The reality is, some employers are not using this additional time to assess employees’ capabilities and suitability for the job and providing training or support or to resolve difficulties. They are relying on the qualifying period as a “Get out of jail free” card – or a “Stay out of employment tribunal” card.
The law on unfair dismissal requires employers to act reasonably when dealing with disciplinary and dismissal issues and while the Taylor Review pays particular attention to working practices in the gig economy, the report states that all work in the UK’s economy should be “fair and decent”.
Too many people at work are treated as disposable, to be dismissed without any regard for what is “fair and decent”. Too many people don’t see a route to progress and do better – with their existing or future employers – because they are unable, through no fault of their own, to build up continuity of service.
The Acas Code of Practice provides good practice advice for dealing with discipline and dismissal in the workplace. An employer’s failure to follow the Code is not a complaint in its own right but the employment tribunal will take it into account when considering a complaint of unfair dismissal and adjust any awards by up to 25 per cent. The Code sets a minimum standard which allows an employee to better understand the employer’s position, state their case and provide them with the dignity that does not come from being simply being told, don’t come back to work tomorrow.
Donna Reynolds is an employment partner with CCW Business Lawyers