Constructive dismissal claim struck out for lack of two years' service

A short-lived employment leads to a legal dead end

This case shows the hard reality of the two-year qualifying period for unfair dismissal claims. The former employee worked for Serco Limited for just over six weeks, from 24 April to 6 June 2023. When they presented a claim including unfair dismissal on 7 July 2023, the tribunal quickly spotted the problem: they did not have the required two years' continuous service.

The constructive dismissal argument that failed

The claimant argued that the two-year service requirement should not apply to constructive dismissal claims. This is a common misconception. The tribunal was clear: section 108 of the Employment Rights Act 1996 applies to all unfair dismissal claims, whether the dismissal is actual or constructive. The claimant was given a chance to show cause why the claim should not be struck out, but their response – that it was 'permissible' to pursue a constructive dismissal claim despite short service – was simply wrong in law.

What this means for similar claims

For anyone considering an unfair dismissal claim, the first check must be length of service. If you have less than two years' continuous employment at the effective date of termination, you cannot bring a standard unfair dismissal claim unless you fall within one of the automatic unfair dismissal categories (such as whistleblowing or discrimination). Constructive dismissal does not bypass this rule. The tribunal also refused a reconsideration application, noting there was no prospect of the decision being varied.

The case is a reminder that employment rights are not universal from day one. The two-year qualifying period is a significant hurdle, and claimants should seek advice early to avoid wasting time on claims the tribunal cannot hear.