An employee serving under two years may still lodge an unfair dismissal claim

It is, of course, common knowledge that employees with under two years of continuous service cannot bring a claim for unfair dismissal. This is generally true, however in some, albeit strictly limited cases, a claim for unfair dismissal can be started regardless of the length of service.

The case of Hamilton v Solomon And Wu Ltd can serve as a useful reminder. Mr Hamilton had just completed his probation of three months as an installer and worked primarily in the workshop. Mr Hamilton alleged he was dismissed unfairly on the grounds of health and safety as the dust extraction system was ineffective in his workshop and he complained of other contraventions of health and safety regulations, such as a blocked fire exit, tools untested for electrical safety, or that his dismissal was for a protected disclosure (‘whistleblowing’) reporting the alleged health and safety breaches. These two grounds do not require two years of service for an unfair dismissal claim. His employer contended that Mr Hamilton was practically unmanageable and was dismissed for this reason.

The Employment Tribunal considered the presented evidence and decided, its decision was upheld on appeal, that the employee could not at all reasonably believe there was a risk to health of any employee and there was no protective disclosure. This was fatal to the unfair dismissal claim and it failed. No further examination of the dismissal fairness was required as the employee was employed for less than two years.

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Authors: Kiril Moskovchuk

Published: 21 Feb 2019

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