Less than two years' service: automatic unfair dismissal claim for asserting statutory right allowed to proceed
A former employee with less than two years' service had her unfair dismissal claim reinstated after the tribunal realised she might qualify for the automatic unfair dismissal exception for asserting a statutory right.
1 min read · Last updated 18 May 2026
Case details
- #less-than-two-years-service
- #automatic-unfair-dismissal
- #working-time-regulations
- #strike-out-reconsidered
Key facts
- The claimant was employed by the respondent for less than two years.
- The claimant alleged she was automatically unfairly dismissed for asserting a statutory right under the Working Time Regulations.
- The original judgment struck out the unfair dismissal claim due to insufficient service.
- On reconsideration, the strike-out was set aside because the claimant's assertion of a statutory right could exempt her from the two-year service requirement.
- The case was listed for a preliminary hearing to determine the issues.
Timeline
-
Strike out warning sent
The claimant was sent a strike out warning because her unfair dismissal claim appeared to lack the required two years' service.
-
Original judgment striking out claim
Employment Judge Dawson struck out the unfair dismissal complaint due to insufficient service.
-
Tribunal considers reconsideration
The tribunal wrote to the parties stating it was considering reconsideration of the strike-out judgment.
-
Decision on reconsideration
Employment Judge Dawson set aside the strike-out judgment, allowing the claimant to proceed with her automatic unfair dismissal claim.
-
Reconsideration decision sent to parties
The decision on reconsideration was sent to the parties.
The legal issue
Whether the claimant's unfair dismissal claim could proceed despite having less than two years' service, on the basis that she was automatically unfairly dismissed for asserting a statutory right.
The outcome
The tribunal originally struck out the unfair dismissal claim because the claimant had less than two years' service. However, on reconsideration, the tribunal noted that the claimant had alleged she was dismissed for asserting a statutory right (under the Working Time Regulations), which is an exception to the service requirement. The strike-out was set aside and the case will now proceed to a preliminary hearing to determine the issues.
Lessons & takeaways
- If you are dismissed for asserting a statutory right (like holiday pay or working time rights), you may bring an unfair dismissal claim even with less than two years' service.
- Always respond to tribunal correspondence promptly; failing to do so can lead to your claim being struck out without consideration of exceptions.
- If your claim is struck out, you can ask for reconsideration if the tribunal overlooked an important point, such as an exception to the service requirement.
- Employers should be aware that dismissing an employee for asserting a statutory right can lead to automatic unfair dismissal liability regardless of length of service.
A second chance for a claim that was struck out too soon
This case shows how easy it is for a tribunal to initially miss an important legal exception. The former employee had worked for Work Experience Limited for less than two years and claimed she was unfairly dismissed. Because the general rule is that you need two years' service to bring an ordinary unfair dismissal claim, the tribunal struck it out without looking more closely at her case.
However, the claimant had stated in her claim form that she was dismissed because she had asked her employer to respect her statutory rights under the Working Time Regulations. This is a type of 'automatic unfair dismissal' that does not require any minimum service period. When the tribunal later reviewed the file, it spotted this and set aside the strike-out.
What the employer could have done differently
Work Experience Limited could have raised the point earlier, but instead it agreed that the case should be reconsidered. The employer now wants a preliminary hearing to test whether the claim has any real prospect of success, arguing that the real reason for dismissal was a complaint from a service user, not the assertion of a statutory right. That argument will be heard at the next stage.
Why this matters
For employees with less than two years' service, this case is a reminder that not all unfair dismissal claims are barred. If the reason for dismissal is one of the automatically unfair grounds — such as asserting a statutory right, whistleblowing, or certain family-related reasons — the service requirement does not apply. For employers, it highlights the need to carefully consider the employee's stated reason for the claim before assuming it can be struck out.
Similar cases
Unfair dismissal but 100% Polkey reduction due to workplace closure
A former employee was unfairly dismissed but received only limited compensation because the tribunal found he would have been fairly dismissed a month later when the workplace closed. Total award: £12,419.29.
Redundancy selection: lowest score in pool led to fair dismissal
A Holistic Assessor with 4 years' service was fairly dismissed after scoring lowest in a redundancy selection matrix. The tribunal found the process was reasonable despite the employee's concerns about the criteria.
Short-service employee wins wage claim but unfair dismissal struck out
A former employee with less than two years' service had her unfair dismissal claim struck out, but won £340 in unauthorised deduction and breach of contract claims.
Gymnastics coach dismissed after asking for contract and payslips wins automatic unfair dismissal claim
A gymnastics coach was automatically unfairly dismissed after asserting her right to a written contract and payslips. The tribunal awarded £56,202 including compensation for unlawful wage deductions.