Less than two years' service: unfair dismissal claim struck out against Marks and Spencer
A former employee with under two years' service had her unfair dismissal claim struck out. All remaining discrimination and wrongful dismissal claims were dismissed after a full hearing.
1 min read · Last updated 18 May 2026
Case details
Key facts
- The claimant had less than 2 years' service, so could not bring an ordinary unfair dismissal claim.
- The claimant alleged automatic unfair dismissal based on perceptive and associative discrimination, but this is not a valid ground.
- The claimant did not make any protected disclosure claims in her original claim.
- All substantive claims of discrimination and wrongful dismissal were dismissed after a full hearing.
Timeline
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Tribunal asks claimant to explain unfair dismissal claim
The Tribunal asked the claimant why her unfair dismissal claim should not be struck out.
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Claimant responds
The claimant replied, stating she had been victimised and harassed and made protected disclosures.
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Strike-out judgment
Employment Judge Adkinson struck out the unfair dismissal claim due to insufficient service and lack of valid automatic unfair dismissal grounds.
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Full hearing begins
The remaining claims of discrimination and wrongful dismissal were heard over several days.
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Full hearing ends
The hearing concluded on 19 August 2022.
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Further hearing
A further hearing was held on 1 November 2022.
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Judgment issued
Employment Judge Victoria Butler issued a judgment dismissing all remaining claims.
The legal issue
The tribunal had to decide whether the unfair dismissal claim could proceed despite insufficient service, and whether the remaining discrimination and wrongful dismissal claims were valid.
The outcome
The tribunal struck out the unfair dismissal claim early in the proceedings because the former employee had less than two years' service and had not established a valid claim for automatic unfair dismissal. Her attempt to argue automatic unfair dismissal based on 'perceptive and associative discrimination' was not a recognised ground.
After a full hearing of the remaining claims, the tribunal dismissed all claims of direct discrimination and harassment related to race, perceived disability, and perceived sexual orientation, as well as wrongful dismissal. No compensation was awarded.
Lessons & takeaways
- Employees with less than two years' service cannot bring ordinary unfair dismissal claims unless they fall within a narrow category of automatically unfair reasons.
- Automatic unfair dismissal claims must be based on specific protected grounds such as whistleblowing or asserting statutory rights — 'perceptive and associative discrimination' is not one of them.
- If you intend to rely on protected disclosures, you must include those allegations clearly in your original claim form or apply to amend it promptly.
- Tribunals will strike out claims that have no reasonable prospect of success at an early stage, saving time and costs.
This case illustrates a hard legal reality: employees with less than two years' service have limited protection against unfair dismissal. The former employee, who worked for Marks and Spencer, tried to bring an unfair dismissal claim despite her short service by arguing it was automatically unfair due to discrimination. However, the tribunal explained that being dismissed because of 'perceptive and associative discrimination' does not qualify as automatic unfair dismissal under the Employment Rights Act 1996.
What the tribunal decided
The unfair dismissal claim was struck out on paper in January 2021, long before the full hearing. The tribunal gave the claimant a chance to explain why it should not be struck out, but her response did not amend her claim to include protected disclosures — the only potential route to an automatic unfair dismissal claim with under two years' service. The remaining claims of discrimination and wrongful dismissal went to a full hearing in August 2022, where all were dismissed as not well-founded.
What could have been done differently
The claimant could have sought legal advice before bringing her claim to understand the service requirement and the limited grounds for automatic unfair dismissal. If she believed she had been dismissed for making protected disclosures, she should have included those allegations in her original claim form or applied to amend it with clear details. The tribunal noted that her reply to the strike-out query did not amount to an amendment application.
Why this matters
This case is a reminder that employment rights are not automatic — they often depend on length of service and the specific legal basis of the claim. For anyone considering an employment tribunal claim, checking the qualifying period and the precise legal grounds is essential. A claim that has no reasonable prospect of success may be struck out early, saving time but also potentially leaving the claimant with a costs risk.
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