Is it fair or not?

Andy, a young graduate, found it difficult to find a job after leaving university; he was delighted when he was offered a job in the accounts department of a small company as an accounts clerk. He started work on 1 January 2005. On the same day Lorraine started work for the same company. She was also employed as an accounts clerk.

Andy and Lorraine were both given contracts of employment that stated that after completing a six month probationary period they would be on one month’s notice. So if they wanted to leave they would have to give one month’s notice and if the company wanted to sack them they would also be given one month’s notice.

Andy struggled to adapt to the work and the routine of working fixed hours. At the end of his probationary period, his manager told him that the company were going to extend his probation to nine months. Andy was not happy but decided to try and work a bit better. At the end of nine months his employment was confirmed.

Lorraine on the other hand was doing well. Hardworking and committed to establishing a career she easily passed her probationary period. In November she applied for a better job in the accounts department with a competitor company. On 1 December 2005, her boss heard that she was looking to leave. He called her into his office and sacked her on the spot. He told her that he was going to give her one month’s pay in lieu of notice.

Lorraine wanted to claim unfair dismissal but her solicitor told her that she could not because, although she had been employed for 11 months and was entitled to another month’s notice, she had not been employed for the minimum period of 1 year.

Andy felt that his friend Lorraine had been treated very badly and lost a lot of motivation as a result. His manager warned him in mid December that if he did not buck up his ideas he would be sacked.

One week before he would have been employed for one year his manager called Andy into his office and sacked him just as he had sacked Lorraine.

Andy’s solicitor told him that he could make a claim of unfair dismissal even though he had not been employed for one year. How can this be?

The answer is that in calculating whether an employee has been employed for one year or more, the statutory minimum period of notice of one week is added to the actual period of employment.

In Andy’s case 51 weeks employment plus 1 week equals one year’s employment, the qualifying period to make an unfair dismissal claim.

If Lorraine had not been sacked with immediate effect but told to go home for the one month notice period she would then have been able to claim unfair dismissal.

It may not seem right that a good employee treated very badly has no claim whereas a poor employee with three weeks more service does have a claim, but that is how the law stands at the moment.

Published 27/09/2006.