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Dismissed with less than 2 years service

Published 05 June 2017

When Billy was dismissed for allegedly muttering an insult about a colleague he did not believe it was worth challenging the decision.

The pharmacy assistant had been employed for just 23 months when his contract was terminated for gross misconduct following a disciplinary hearing.

Billy vehemently denied the allegation, but was advised by friends and family that he should just accept the decision as he had under two years’ service, and therefore could not make a claim to an Employment Tribunal for unfair dismissal.

Employees can only claim unfair dismissal if they have worked for a qualifying period, which is two years.

Distraught Billy submitted an appeal against the decision and contacted Castle Associates for help.

Billy was dismissed following an allegation from a female colleague who claimed she felt insulted and offended by a disparaging comment he made after she asked for his help. There were no independent witnesses to the incident.

At the appeal hearing our representative argued that the decision to dismiss Billy, who had a clean disciplinary record, was unfair and unduly harsh.

Key to this was the pharmacy’s own disciplinary policy in which it listed examples of misconduct that would not normally lead to dismissal for a first offence. The list included: inappropriate behaviour or comments to other members of staff which offends them.

Our representative highlighted that even if the allegation was considered proven it was not an act of gross misconduct in accordance with the company’s disciplinary policy.

He also made the point that as the allegation was clearly not one of gross misconduct and Billy was dismissed with just under two years’ service, an Employment Tribunal can add to his service the statutory one-month notice period – as stated in his employment contract – that the pharmacy should have given him. This would take him to over two years’ service and allow him to make a claim to an Employment Tribunal for unfair dismissal

The notice period will not be added if the employee is justifiably dismissed for gross misconduct.

Following the hearing the decision to dismiss Billy was overturned. His wish was to return to work but at a different branch, which he did.

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