Why the two year employment threshold matters
Have you worked for your employer for more than two years?
Before you start to look into your employment case, there is one fundamental issue that every employee needs to know: if you have less than two years’ continuous employment with your employer, your employer can dismiss you by giving you no more than statutory or contractual notice.
Unfortunately, there is nothing you can do about this unless you have a claim such as discrimination or a specified claim which does not require two years’ service. Such claims are rare.
An employee needs two years’ service in order to claim unfair dismissal, the most common claim leading to settlement agreements.
What does it mean if you have less than two years’ service?
This means that for the vast majority of employees, if you have less than two years’ service and are facing any of the scenarios in this chapter, or you have simply been dismissed, there is often very little that you or we can do about it.
This isn’t always the case, and we have negotiated very high value settlements for people without two years’ service, but they usually fall into one of three categories:
- They have a strong claim against the company for discrimination or something similar;
- They are very well paid and the company wants to “do the right thing by them”. This latter scenario usually means that they don’t want to get a reputation in their field for treating highly-paid employees poorly, which will make it difficult for them to attract the best talent in the future.
- The employee is employed in a commercially sensitive position and the company wishes them to enter into a settlement agreement in order to sign up to restrictions post-termination (such as a restrictive covenant), and the company is willing to pay for this.
Can I still negotiate a settlement agreement without two years’ service?
Of course, there will always be other scenarios which will mean that a settlement agreement and a severance package complete with ex gratia payment will be achievable; however, based on our experience, if an employee does not have two years’ service or fall into one of the above three categories, the chances of achieving a settlement are low.
That said, and bearing the two years’ service factor in mind, we can examine the most common scenarios which lead to a negotiation and a settlement agreement.