If A Member Of Staff Has Not Been Employed For Over Two Years They Cannot Claim Unfair Dismissal…Right

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If A Member Of Staff Has Not Been Employed For Over Two Years They Cannot Claim Unfair Dismissal…Right?

Normally employees finding themselves with their employment terminated are often surprised to discover that they have no claim for unfair dismissal because they have not achieved the required two years continuity of service. Those employees finding themselves in this situation often discover that the best they can hope for is to receive their:

  • notice pay
  • holiday pay
  • references and
  • any other outstanding payments.

Are There Any Exceptions?

This is often a shocking realisation and employees facing this predicament often think they have no other options available but to cut their losses and move on to pastures new. However, some employees are lucky enough to find themselves falling within one of the lesser-known exceptions to the continuity-of-service rules. One exception is if an employee communicates to their respective employer that they are enforcing one of their legal rights which is known as asserting a statutory right.

I Have Never Heard Of This…What Statutory Rights Can Be Asserted?

Employees can claim numerous rights and find themselves dismissed as a result of making it clear to their employer that they are claiming their rights by submitting a claim to the Employment Tribunal or has complained that the relevant business has breached a statutory right. They can claim the right to:

  • itemised wage slips
  • wages
  • alerted the employer to health and safety concerns which derail projects
  • requesting time off work to care for dependents and paternity leave
  • whistleblowing

If there is a causal and correlative link between the claim being put forward and the dismissal then this is potentially unfair. Most interestingly of all no continuity of service is required and the employee has reasonable prospects of successfully claiming to have been automatically unfairly dismissed.

Employee Successfully Claims Automatic Unfair Dismissed For Asserting A Statutory Right

In the recent case a person had been employed to operate equipment for one-year-and-a-half. In early October 2018 the employee’s partner was pregnant, reported feelings of sickness and a medical appointment was arranged. The Claimant faced a dilemma as the couple had dependent children and there was an urgent need to accompany the couple’s junior school-age dependent child to school. The Claimant also communicated that he needed to attend the medical appointment with his pregnant partner.

How Did The Claimant’s Employer Respond?

The Respondent denied the Claimant’s holiday request because he had not provided the employer with the requisite one-weeks’ notice period. The Claimant was declined to swap holidays. The Claimant even communicated directly to the employer the extent of his predicament on 6th October 2018. He advised his employer that the couple did not have any childcare in place due to his wife’s illness. However, this was not considered to be valid excuse by the employer. On the day of the appointment, the employee telephoned his employer and took the day off.

The employee was then summoned to attend an investigation meeting during which the employer reassured the claimant that no further action would be taken. However, eventually the Claimant requested his entitlement to paternity leave which seemingly resulted in the employer being determined to make an example of him and decided to terminate his employment.

Pages Turned Lessons Learned?

As a result of this case, lawyers should be advising clients to:

  • be aware of the statutory rights staff may be entitled to
  • allow colleagues time off to attend medical appointments
  • provide staff with time out of work to care their dependents in the event no alternative childcare provision is available and
  • not dismissing colleagues for claiming such rights.

The Legists Content Team


#Allen&Overy #BakerMcKenzie #HerbertSmithFreehillsLLP #LewisSilkin #MishcondeReya #Simmons&Simmons #AddleshawGoddard #CliffordChanceLLP #CMS #DACBeachcroftLLP #EvershedsSutherlandLLP #LinklatersLLP #TaylorWessing #TraversSmith #Bird&Bird


[1] Rankin, Janey – Asserting a statutory right - 7 July 2022 – Boyes Turner - Asserting a statutory right :: Boyes Turner

[2] Section 57A Employment Rights Act 1996

[3] Mr C Jewell v Stax Converting Ltd – Case Number 2406047/2019 EMPLOYMENT TRIBUNALS (publishing.service.gov.uk)



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