Unfair dismissal – does long service count?

Unfair dismissal claims are a genuine concern for businesses and quite rightly so. Before sending an employee to pack their belongings, it’s worth considering if dismissal is the right decision.

Unfair dismissal claims can damage a company’s reputation and negatively impact other employees, not to mention the time, effort, and expense involved in defending such claims at an Employment Tribunal.

Managers who are aware of this will take greater care in dealing with misconduct or poor performance. When considering a potential dismissal, they’ll ensure to consider all the circumstances before making a final decision.

Does an employee’s length of service make a difference?

Organisations often request guidance on whether long service (or short for that matter) should be accounted for when considering disciplinary sanctions, especially dismissal.

The simple answer is ‘yes.’

Long service

In our experience, a long-serving employee is less likely to be dismissed for misconduct than someone with short service.

It’s usual to take into account:

• The employee’s years with the company
• The contribution they’ve made
• Their track record
• Whether they’ve been subject to misconduct proceedings before
• Whether they’ve received disciplinary warnings in the past
• If the current misdemeanour is a one-off
• If other staff are involved, what part did they play?
• If the employee is sorry for what has happened
• What is the likelihood of it happening again?
• What you will do if you don’t dismiss; will a lesser penalty be appropriate?
• And so on…

However, you must consider the seriousness of the situation, the impact on the business, and other relevant factors. Long-serving employees cannot be exempt from dismissal.

Short service

Employees with less than two year’s service do not have a right to claim unfair dismissal, so most companies’ disciplinary processes include the discretion to take account of an individual’s length of service and to vary the procedures accordingly. Ordinarily, a company’s disciplinary procedure will not apply to employees during their probationary period.

Beware that although there is no right to claim unfair dismissal, employees with less than two years’ service can bring other claims, such as breach of contract and claims related to discrimination (among other things).

Mitigating factors and unfair dismissal

It’s always important to consider any mitigating factors when deciding an appropriate sanction for any dismissal, including gross misconduct. It’s very easy to fall into the trap that gross misconduct automatically equals summary dismissal without first considering mitigating factors.

There have been several cases where employees have successfully claimed unfair dismissal where mitigating factors have not been considered. Or, an employer has not demonstrated that it has adequately considered mitigating factors before reaching that conclusion.

Long-serving employees should’ve known better

In a recent case, Donovan v Greggs plc, an Employment Tribunal held that an experienced employee should have appreciated the seriousness of breaching his employer’s hygiene rules. It was appropriate for the employer to dismiss him.

Donovan, who had 11 years’ service with Greggs, admitted not washing his hands before re-entering the food production area. Following a disciplinary process, he was dismissed because the company had a zero-tolerance approach to breaches of its hygiene rules.

Donavan claimed unfair dismissal and, while he acknowledged that he had breached his employer’s policies, he argued that the dismissal was outside the band of reasonable responses and, in the circumstances, too harsh.

Not unfair dismissal – it was fair to remove this employee

The employment tribunal concluded that the employer’s decision to dismiss fell within the range of reasonable responses. It accepted that the employer’s principal reason for dismissal was that the claimant could not now be trusted to follow hand-washing rules and posed an unacceptable risk to its customers and reputation.

In rejecting the unfair dismissal case, the Employment Tribunal considered that length of service could be a mitigating factor when deciding on the appropriate sanction; however, it had gone against the claimant. Donovan’s length of service, together with his experience in the food industry of over 25 years, made it reasonable for Greggs to have expected better from such an experienced worker.

Long service can be a mitigating factor that could result in a less harsh penalty being given in some circumstances. However, the case above has shown that to be the opposite.

To avoid claims for unfair dismissal, please contact us for practical advice.