Tribunal claims with under two years’ service

This is a common question and the answer is more nuanced than many employers realise. The short answer is yes, in a number of important situations an employee can bring a tribunal claim even with less than two years' service.

The two-year qualifying period:

The general rule is that an employee needs two years' continuous employment to bring an ordinary unfair dismissal claim under section 94 of the Employment Rights Act 1996. This qualifying period applies to employees whose employment started on or after 6 April 2012.

Claims that have no qualifying period:

There is a significant list of claims where no minimum service is required at all. These include the following.

1. Discrimination claims under the Equality Act 2010, covering race, sex, disability, age, religion or belief, sexual orientation, gender reassignment, marriage and civil partnership, and pregnancy and maternity.

2. Automatically unfair dismissal, which covers dismissals connected to a wide range of protected reasons. These include whistleblowing (making a protected disclosure), asserting a statutory right, health and safety activities, pregnancy or maternity-related reasons, trade union membership or activities, requesting flexible working, and acting as an employee representative, among others.

3. Unlawful deduction from wages claims under Part II of the Employment Rights Act 1996.

4. Breach of contract claims on termination of employment.

5. Claims relating to failure to provide written particulars of employment under section 1 of the Employment Rights Act 1996.

6. Claims under the Working Time Regulations 1998, for example relating to holiday pay.

7. Claims under the National Minimum Wage Act 1998.

8. Claims relating to the right to be accompanied at disciplinary and grievance hearings.

9. Claims for less favourable treatment of part-time or fixed-term workers.

Practical significance for employers:

This means that even if an employee has only worked for you for a few weeks, they could still bring a claim if, for example, you dismiss them for a discriminatory reason, they raise concerns about safety or wrongdoing and you act against them, you fail to pay them correctly, or they are treated less favourably because of pregnancy.

Discrimination claims in particular are the most common route for short-service employees. These claims can be expensive to defend, have no cap on compensation, and carry reputational risk. Tribunals take them seriously regardless of length of service.

What to watch out for:

Even where you believe the two-year rule protects you, be cautious. A disgruntled employee or their solicitor will actively look for a way to frame a claim that avoids the qualifying period. If there is any factual basis for alleging discrimination or another no-qualifying-period claim, they can and often will bring it.

It is also worth remembering that before a tribunal claim can be issued, the employee must normally go through ACAS early conciliation. This applies regardless of service length and you may receive contact from ACAS before any formal claim is lodged.

Possible change ahead:

The Employment Rights Bill, which is currently progressing through Parliament, proposes to remove the two-year qualifying period for ordinary unfair dismissal and replace it with a day-one right, subject to an initial period of employment during which a lighter-touch dismissal process would apply. This is not yet law and the precise details are still being worked out, but it is something to keep on your radar as it could significantly change the landscape for employers.

What you should do practically:

Even with short-service employees, follow a fair and documented process when managing performance, conduct, or any decision to end employment. Keep clear records of the reasons for any action taken. This protects you not only against current no-qualifying-period claims but also positions you well if the law changes.

If you have a specific situation in mind, I am happy to look at the detail with you.