Claim for Unfair or Constructive Dismissal

Does an employee need two year’s continuous employment to pursue a claim for unfair or constructive dismissal?

As a general rule qualifying employees require a minimum of two year’s continuous service in order to pursue a claim for unfair or constructive dismissal.

The length of service has fluctuated over the years from 6 months to one year and was last increased by the Government to two years on 6 April 2012.

If an employee has less than two years’ continuous employment then as a general rule they will not be able to present an unfair or constructive dismissal claim to the Employment Tribunal.

There are however some circumstances where there are no qualifying periods of service are required and an employee can issue proceedings for unfair or constructive dismissal from the start of their employment.

The exemptions from the general two year rule can be summarised as follows:

1. Where the dismissal is related to pregnancy, childbirth, the taking of maternity, paternity, adoption or parental leave. This will usually be accompanied by a sex discrimination claim as well.

2. Where it relates to having time off to look after dependents for example a child or elderly relatives.

3. Where it relates to health and safety for example raising a complaint about unsafe practices. This can also tie in with what is termed ‘Whistle-blowing’ rights where the employee complains about unlawful and/or criminal activities in the workplace and is dismissed for doing so.

4. Where the decision relates to membership of a Trade Union.

5. Breaches of the Working Time Regulations in terms of exercising rights not to work excessive hours or to have regular work breaks and not to work at night.

6. Where it relates to any activities as an employee representative in the workplace.

7. Any refusal by staff in retail to work on Sundays.

8. Asserting a statutory right for example to take holidays, to be paid the national minimum wage, or issuing a grievance.

9. Where it relates to performing any duties as a trustee of an occupational pension scheme.

10. Where an employee takes industrial action.

11. Where it relates to the employees status as a part-time or Fixed-term worker.

12. Duties relating to public service for example Jury service, or taking part in public committees.

It therefore appears that it is not so straight-forward to dismiss an employee where they have less than two years’ continuous service, as there is still a risk that a complaint can be made to an Employment Tribunal within the three months’ limitation period. There could also be breach of contract issues if an employee has been dismissed in breach of any internal contractual disciplinary procedures or policies.

Even if the claim has no merit it can still out the Employer to the expense of defending it, and the time management that will be involved.

It is therefore imperative that timely legal advice is taken before taking action in dismissing members of staff with short periods of employment.

Call Steven Eckett on 020 7998 7777 for more information or email him at

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