Q&As

Can someone with less than two years’ employment challenge their dismissal on the basis that the employer’s failure to grant them an appeal hearing amounts to less favourable treatment, and a detriment; and how do the provisions of the Equality Act 2010 impact on this situation where the individual believes they were treated less favourably because of a protected characteristic?

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Published on LexisPSL on 02/10/2018

The following Employment Q&A provides comprehensive and up to date legal information covering:

  • Can someone with less than two years’ employment challenge their dismissal on the basis that the employer’s failure to grant them an appeal hearing amounts to less favourable treatment, and a detriment; and how do the provisions of the Equality Act 2010 impact on this situation where the individual believes they were treated less favourably because of a protected characteristic?

The right not to be unfairly dismissed is a purely statutory right arising under section 94 of the Employment Rights Act 1996 (ERA 1996). While conduct and performance are potentially fair reasons for dismissal, the dismissal may be found to have been unfair if the employer has failed to follow a fair procedure. An appeal hearing is considered to be a necessary element of a fair procedure for the purposes of an unfair dismissal claim, but there is no stand-alone statutory right to one.

In order to claim unfair dismissal, an employee will first have to establish that they have a right not to be unfairly dismissed. There are a number of qualifying conditions and exceptions, one of which is that in the normal course an employee is only eligible to bring a claim of unfair dismissal where they have at least two years’ continuous employment with the employer by the effective date of termination of their employment.

No qualifying period of employment at all is required where the reason or principal reason for dismissal was one of a number of specified reasons. These include various reasons which make a dismissal automatically unfair. For further information, see Practice Notes:

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