Dismissing a Short-Service Employee

An employee with less than two years’ service can often be dismissed without the same ordinary unfair-dismissal risk that applies to a longer-serving employee. That does not mean the employer can safely dismiss them for any reason, ignore their contract or assume that no procedure is needed.

The first question is not simply, “How long have they worked here?” It is, “What claims could realistically arise from this dismissal?”

At present, employees generally need two years’ continuous employment to claim ordinary unfair dismissal. However, there are important exceptions where no two-year qualifying period applies, including a range of automatically unfair dismissals. Discrimination claims also do not depend on two years’ service. From 1 January 2027, the ordinary unfair-dismissal qualifying period is due to fall to six months.

For employers, the sensible approach is therefore to assess the risk first and then decide how much process is proportionate.

What is the qualifying period?

The qualifying period is the minimum continuous employment an employee normally needs before they can bring an ordinary unfair-dismissal claim.

As at 9 September 2026, the ordinary qualifying period in England, Scotland and Wales remains two years. For dismissals with an effective date of termination before 1 January 2027, the existing two-year regime continues to apply. From 1 January 2027, the Employment Rights Act 2025 is due to reduce that period to six months.

Length of service should not be judged casually from an employee’s start date and the day a manager intends to tell them they are dismissed. Continuous employment, notice and the effective date of termination can all matter.

Where an employee is approaching the qualifying threshold, check the calculation before acting.

Can a short-service employee claim unfair dismissal?

Potentially, yes.

The important distinction is between ordinary unfair dismissal and dismissal for a reason for which the ordinary qualifying period does not apply.

An employee who has not completed the ordinary qualifying period will usually be unable to bring a conventional claim that the employer lacked a fair reason or followed an unfair process. But they may still be able to claim automatically unfair dismissal if the real reason falls within one of the statutory exceptions.

This is why saying, “They are under two years, so we do not need a reason,” is poor risk management.

The employer should establish the genuine reason internally. Without doing that, it cannot sensibly assess whether the proposed dismissal is connected to a protected activity, discrimination or another claim.

Automatically unfair reasons

Some dismissal reasons can be automatically unfair without the employee having completed two years’ service.

Employer-relevant examples include dismissal principally because the employee:

• made a protected whistleblowing disclosure;
• raised qualifying health and safety concerns or took protected health and safety action;
• was pregnant or exercising maternity rights;
• sought or took certain family-related leave;
• made a statutory flexible-working request;
• asserted certain statutory employment rights;
• was involved in protected trade union activities or membership;
• undertook jury service.

This is not an exhaustive list, and the precise statutory tests matter.

An employer should therefore look beyond the label being attached to the dismissal. A manager describing the problem as “poor attitude”, for example, does not remove risk if the evidence suggests that the real concern arose after the employee made a protected disclosure.

Discrimination and short service

Equality Act protection does not depend on the ordinary unfair-dismissal qualifying period.

A short-service employee could therefore bring a discrimination claim if the dismissal or surrounding treatment is unlawfully connected to a protected characteristic. These include age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

Disability

Disability is particularly important where dismissal is being considered because of attendance, performance or capability.

An employer may need to consider whether the employee is disabled for Equality Act purposes, whether the problem is connected to that disability and whether reasonable adjustments should be made before reaching a decision. Dismissing someone simply because they are disabled can amount to unlawful discrimination.

Where ill health is the underlying issue, our guide to managing long-term sickness absence explains the wider capability considerations.

Pregnancy and maternity

Pregnancy and maternity require particular care. Dismissal because of pregnancy or maternity can be both automatically unfair and discriminatory, regardless of short service.

Step 1 — Identify the real reason

Start with the facts.

Why is the business actually considering dismissal?

It might be:

• poor performance;
• misconduct;
• attendance;
• an unsuccessful probation period;
• a breakdown in working relationships;
• redundancy;
• lack of capability;
• another substantial business issue.

Record the genuine reason rather than looking for a convenient label afterwards.

If the concern is misconduct, consider whether a disciplinary procedure for employers is appropriate. For serious allegations, the gross misconduct guide explains why even potentially summary-dismissal cases still require proper fact-finding.

If the concern is performance, how to manage poor performance sets out the fuller capability route that may be appropriate where the circumstances justify it.

Step 2 — Check for protected issues

Before deciding that a shortened process is appropriate, run a basic risk screen.

Ask whether the employee has recently:

• complained about discrimination or harassment;
• disclosed a disability or requested adjustments;
• announced a pregnancy or exercised family-leave rights;
• raised concerns about wrongdoing;
• raised health and safety concerns;
• complained about pay, holiday or working-time rights;
• made a statutory flexible-working request;
• raised a grievance;
• become involved in trade union activity;
• asserted another statutory employment right.

The existence of one of these issues does not automatically prevent dismissal. Nor does raising a grievance automatically make a later dismissal unlawful.

It does mean the employer should understand whether there is any connection between the protected issue and the proposed decision before proceeding.

Step 3 — Check the contract

Short service does not remove contractual rights.

Check the employee’s:

• notice period;
• payment-in-lieu-of-notice provisions;
• probation terms;
• any contractual disciplinary or capability procedure;
• bonus or commission rights;
• benefits;
• accrued holiday entitlement.

An employee with at least one month’s continuous service is generally entitled to at least one week’s statutory notice where service is below two years, unless the circumstances justify dismissal without notice, such as established gross misconduct. A contract may provide a longer notice period.

Wrongful dismissal is different from unfair dismissal. It is essentially a contractual claim, commonly arising where an employer fails to provide the notice or notice pay due. It does not require two years’ service.

If there is a contractual PILON clause, the employer may be able to terminate immediately and make the contractual payment instead. If there is no such clause, do not assume the employer can impose PILON without consequence. Acas recommends obtaining advice where PILON is not provided for contractually and cannot be agreed.

Step 4 — Choose the right process

The appropriate process should reflect the actual risk.

A full multi-stage disciplinary or capability procedure is not automatically necessary simply because an employee is being dismissed. Where the employee is clearly below the ordinary qualifying period, there are no meaningful protected issues and the contractual position is straightforward, a shorter process may be commercially proportionate.

That might involve:

1. checking the manager’s evidence and the employee’s history;
2. confirming there are no obvious protected issues;
3. meeting the employee and giving them an opportunity to respond where appropriate;
4. considering that response;
5. making and documenting the decision.

Other cases require more.

A misconduct allegation may justify a formal investigation and disciplinary process. Performance concerns may warrant a capability process. A genuine redundancy needs a redundancy process. Disability-related concerns may require adjustments and further evidence. Sometimes the correct decision is not to dismiss yet.

A mutually agreed exit may also be considered in appropriate circumstances. Our guide to protected conversations for employers explains when that route may be relevant.

The objective is not to avoid process. It is to use the process justified by the facts.

Step 5 — Confirm the decision

If dismissal is the appropriate outcome, confirm it clearly.

The employer should usually record:

• the reason for dismissal;
• the termination date;
• whether notice will be worked or paid;
• accrued holiday and final-pay arrangements;
• treatment of benefits, commission or bonus where relevant;
• return of company property;
• any appeal arrangements.

Acas recommends telling an employee why they have been dismissed, when their employment will end, what notice applies and how they can appeal, and recommends putting the decision in writing.

Currently, an employee with two years’ service can request a statutory written statement of reasons and the employer must provide it within 14 days. Special rules also apply to employees dismissed during pregnancy or maternity/adoption leave. From 1 January 2027, the general qualifying period for requesting written reasons is due to reduce to six months.

As a practical rule, Harrington Raine recommends documenting the reason even where the employee has no ordinary unfair-dismissal claim. A clear contemporaneous record is far easier to defend than an explanation reconstructed months later.

Dismissal during probation

Probation is useful, but it is not a legal free zone.

There is no general statutory requirement to have a probation period, and probation does not remove statutory employment rights. Acas confirms that the Employment Rights Act 2025 does not itself change the law on probation periods.

An employer does not necessarily have to wait until the final day of probation to address an obvious suitability, performance or conduct problem.

Equally, the word “probation” should not be treated as authority to dismiss without checking the reason, contract or protected risks.

Employers should set clear expectations, review performance during the probation period and address concerns early. This will become significantly more important once the ordinary unfair-dismissal qualifying period falls to six months.

Does the Acas Code still matter?

Yes, but its significance depends on the circumstances.

The current Acas Code of Practice covers disciplinary situations involving misconduct and poor performance. Its basic principles can therefore be relevant to a dismissal even where the employee has short service. It does not apply to redundancy dismissals or the non-renewal of fixed-term contracts simply because they expire.

Failure to follow the Code does not itself create a standalone legal claim. However, tribunals take it into account in relevant cases and can adjust certain awards by up to 25% where there has been an unreasonable failure to comply.

That does not mean every short-service employee requires a lengthy formal process.

It means employers should understand whether the Code, a contractual procedure or another claim makes procedural fairness material before deciding to abbreviate the process.

Notice and the qualifying period

Be especially careful when an employee is approaching the qualifying threshold.

Where employment is terminated on notice, the effective date of termination will ordinarily be the date the notice expires. Where employment is terminated without notice, it will usually be the date the termination takes effect.

There is an additional trap. Government guidance expressly confirms that statutory notice is treated as service when calculating whether the unfair-dismissal qualifying period has been reached, even where that statutory notice was not actually worked or complied with.

This means an employer should not simply count backwards from the two-year anniversary and assume that dismissing immediately a few days beforehand avoids ordinary unfair-dismissal protection.

If the threshold is close, check the effective date, continuous employment and notice position properly.

Do not race the qualifying period.

What changes from 1 January 2027?

From 1 January 2027, official government guidance states that the ordinary unfair-dismissal qualifying period will reduce from two years to six months. Employees who already have at least six months’ continuous employment on that date will gain ordinary unfair-dismissal protection immediately.

The qualifying period for requesting written reasons for dismissal will also reduce to six months, and the existing statutory cap on ordinary unfair-dismissal compensatory awards is due to be removed.

The practical impact is significant.

Employers using six-month probation periods should reconsider when review meetings take place. Waiting until the end of month six to identify whether somebody is performing satisfactorily will leave far less room to manage genuine concerns before ordinary unfair-dismissal protection arises.

That does not mean employers should try to dismiss unsuitable employees before six months as a matter of policy.

It means:

• set expectations from the outset;
• review new starters properly;
• address performance or conduct concerns when they arise;
• document important conversations;
• make decisions promptly rather than allowing obvious problems to drift.

The right response to a shorter qualifying period is better management, not indiscriminate early dismissal.

Should an employer offer an appeal?

An appeal is part of the Acas disciplinary framework and can be useful even where ordinary unfair-dismissal protection is unlikely to apply.

There is not a universal rule that every short-service dismissal must involve a formal appeal irrespective of context.

However, an appeal may:

• identify a factual mistake;
• expose a discrimination or whistleblowing issue that was missed;
• allow another manager to review a contentious decision;
• demonstrate that the employer acted reasonably.

Where a formal disciplinary or capability procedure is being followed, or the contract provides an appeal, the employer should be particularly cautious about omitting it.

Common short-service dismissal mistakes

The biggest mistakes are usually not complicated legal errors. They are failures to check the obvious risks.

Avoid:

• assuming short service means no employment rights;
• failing to identify the genuine reason;
• overlooking discrimination or disability;
• ignoring pregnancy, maternity or family-related rights;
• dismissing shortly after a whistleblowing or health and safety complaint without examining the connection;
• assuming probation removes statutory rights;
• ignoring contractual notice or PILON wording;
• treating sickness absence as an automatic reason to dismiss;
• rushing a dismissal simply to beat the qualifying threshold;
• miscalculating the effective date of termination;
• inventing a misconduct reason to disguise the real concern;
• giving inconsistent explanations to the employee and internally;
• running a cumbersome procedure where a properly assessed low-risk case genuinely justifies something shorter.

Short service changes the risk. It does not remove the need for judgement.

If the proposed dismissal carries uncertainty, dismissal advice for employers can help determine whether a short-form process is defensible or whether the circumstances justify something more substantial.

For related practical guidance, see our HR & Employment Law resources.

Frequently asked questions

Can I dismiss someone with less than two years’ service?

Potentially, yes. An employee below the current ordinary unfair-dismissal qualifying period will usually have less ordinary unfair-dismissal protection, but you must still check automatically unfair reasons, discrimination, contractual rights, notice and other potential claims before dismissing.

Do I have to give a short-service employee a fair reason?

If the employee does not qualify to bring an ordinary unfair-dismissal claim, the employer will not normally need to defend the dismissal under the ordinary unfair-dismissal test.

You should nevertheless identify and record the genuine reason. The reason may determine whether an automatically unfair, discrimination or other claim exists.

Can I dismiss someone during probation?

Yes, potentially. Probation does not prevent dismissal, but neither does it remove statutory employment rights. Check the contract, the genuine reason, protected issues and notice before acting.

Can an employee under two years claim discrimination?

Yes. A discrimination claim under the Equality Act does not depend on the two-year ordinary unfair-dismissal qualifying period.

Can an employee under two years claim whistleblowing dismissal?

Yes, where the statutory requirements for whistleblowing protection are satisfied. Dismissal because an employee made a protected disclosure can be automatically unfair without two years’ service.

Do I need a disciplinary hearing?

Not automatically in every short-service dismissal. If the dismissal concerns misconduct and a formal disciplinary route is being used, the Acas Code and the organisation’s own procedure become important. In a genuinely low-risk case, a shorter process may sometimes be proportionate.

Do I have to give notice?

Usually, yes. Check both statutory and contractual notice. Employees with at least one month’s service normally have a statutory minimum notice entitlement, unless lawful summary dismissal applies.

Can an employee be dismissed without notice for gross misconduct?

Potentially, but the employer should establish the facts and follow an appropriate process before concluding that gross misconduct has occurred. Calling conduct “gross misconduct” does not make it so.

Can I dismiss someone just before two years’ service?

Possibly, but do not assume that the day the decision is communicated determines qualifying service. Statutory notice and the effective date of termination can affect the calculation. Get the service calculation right before relying on the qualifying-period exception.

What changes in January 2027?

From 1 January 2027, the ordinary unfair-dismissal qualifying period is due to fall from two years to six months. The qualifying period for requesting written reasons will also fall to six months, and the statutory compensatory-award cap for ordinary unfair dismissal will be removed. Employers should review probation and new-starter management before the change takes effect.