Dismissal With Less Than 2 Years' Service

While employees need 2 years' service to claim ordinary unfair dismissal, significant protections apply from day one.

The 2-Year Rule

What It Means

To claim ordinary unfair dismissal, you need:

• 2 years' continuous service
• With the same employer
• Calculated to the effective date of termination

Why It Exists

The qualifying period:

• Gives employers flexibility with new hires
• Balances employee rights with business needs
• Has been politically contentious
• Reduced from 2 years to 1 year to 2 years over time

What You CAN'T Claim

Without 2 Years' Service

You cannot bring a claim for:

• Ordinary unfair dismissal (most common claim)
• Statutory redundancy pay

This means:

• No claim if dismissed for performance
• No claim if dismissed for conduct (unless automatically unfair)
• No claim for "just don't fit in"

What You CAN Claim

Day-One Rights

From first day of employment, you can claim:

Claim Type	Basis
Discrimination	Equality Act 2010
Automatically unfair dismissal	Various statutes
Wrongful dismissal	Contract breach
Unlawful deduction	ERA 1996

Automatically Unfair Dismissal

No service requirement for:

• Pregnancy and maternity
• Whistleblowing (protected disclosure)
• Health and safety activities
• Asserting statutory rights
• Trade union membership/activities
• Jury service
• Flexible working requests
• Part-time or fixed-term worker rights

Discrimination

From day one, cannot dismiss for:

• Age
• Disability
• Gender reassignment
• Marriage/civil partnership
• Pregnancy/maternity
• Race
• Religion/belief
• Sex
• Sexual orientation

Wrongful Dismissal

Can always claim if:

• Dismissed without proper notice
• Unless gross misconduct proven

Calculating Service

What Counts

• Continuous employment with same employer
• Includes statutory leave periods
• Includes time on sick leave
• May include some breaks

What Doesn't Count

• Time with previous employers (usually)
• Breaks in employment (usually)
• Agency work before being employed

TUPE Transfers

If transferred under TUPE:

• Service with previous employer counts
• Continuity preserved
• May take you over 2-year threshold

Employer Tactics

"Just Before 2 Years" Dismissal

Some employers dismiss just before 2 years:

• To avoid unfair dismissal rights
• Sometimes called "early exit"
• Legal but may be suspicious
• Check for discriminatory reason

What to Consider

If dismissed close to 2 years:

Question	Why It Matters
Is there a discriminatory reason?	Claim possible
Did I make a protected disclosure?	Claim possible
Did I raise a health and safety concern?	Claim possible
Am I pregnant?	Claim possible
Was notice given?	Wrongful dismissal if not

Practical Impact

For Employees

With under 2 years:

• Can be dismissed for almost any reason
• No need for fair procedure (but check contract)
• Limited legal recourse
• Focus on day-one rights if any apply

For Employers

More flexibility but:

• Still must not discriminate
• Still bound by contract terms
• May face reputational issues
• Should still follow reasonable process

Exceptions and Edge Cases

Agency Workers and Zero Hours

These workers may have:

• Less clear employment status
• Different continuity rules
• Still protected from discrimination
• May have whistleblowing protection

Multiple Employments

If you've worked for same employer before:

• Gaps may break continuity
• Or may count as continuous
• Complex rules apply
• Seek advice if unclear

Associated Employers

Service may count across:

• Group companies in some circumstances
• Complex corporate structures
• TUPE situations
• Seek advice on specific situations

What Employers Should Do

Even Without 2 Years

Good practice suggests:

• Follow some process
• Document reasons for dismissal
• Consider alternatives
• Give proper notice
• Ensure no discriminatory reason

Why Bother?

• Reduces legal risk
• Maintains good practices
• Fair to employee
• Protects reputation
• May be required by contract

If You're Dismissed

Steps to Take

1. Check your service - are you sure it's under 2 years?
2. Consider day-one rights - any automatically unfair reasons?
3. Think about discrimination - any protected characteristics involved?
4. Check your notice - were you given proper notice?
5. Review your contract - does employer have to follow procedure?
6. Get advice - discuss with ACAS or lawyer

Questions to Ask

Question	If Yes...
Is there any discriminatory element?	Consider discrimination claim
Did I blow the whistle?	Consider automatically unfair claim
Was I pregnant or on maternity?	Consider automatically unfair claim
Did I raise health and safety concerns?	Consider automatically unfair claim
Did employer breach contract?	Consider wrongful dismissal
Was I denied proper notice?	Consider wrongful dismissal

Compensation Differences

If You Have a Claim

Claim Type	Compensation
Discrimination	Unlimited
Automatically unfair (some)	Unlimited
Wrongful dismissal	Notice pay value
Unlawful deduction	Amount owed

No Basic Award

Without unfair dismissal claim:

• No basic award (based on service)
• But may have other remedies
• Discrimination can be substantial

Practical Tips

Documentation

Even without 2 years:

• Keep records of everything
• Note dates of key events
• Save important communications
• May become relevant for other claims

Exit Negotiation

You can still:

• Negotiate exit terms
• Ask for reference agreement
• Request settlement
• Seek gardening leave

Future Employment

Consider:

• Getting a reference agreement
• Explaining the dismissal
• What you'll say to future employers
• Learning from the experience