Unfair dismissal claim struck out due to less than two years' service
A former employee of Gatwick Construction Limited had their unfair dismissal claim thrown out because they had not worked there for two years. Their other claims for wrongful dismissal and unauthorised deductions also failed.
2 min read · Last updated 18 May 2026
Case details
Key facts
- The claimant was employed by the respondent for less than two years.
- The claimant's unfair dismissal claim was struck out due to insufficient service.
- The respondent determined the claimant's conduct as gross misconduct under the employment contract.
- The respondent was entitled to recover overpayments from the claimant's wages.
- The claimant was not entitled to notice pay.
Timeline
-
Start of disputed wage period
The claimant's claim for unauthorised deductions relates to wages from 1 July to 23 July 2021.
-
End of disputed wage period
The period for which the claimant claimed unauthorised deductions ended.
-
First judgment on unfair dismissal strike out
Employment Judge Balogun struck out the unfair dismissal claim due to insufficient service.
-
Final hearing
Employment Judge Hena heard the remaining claims and dismissed them.
The legal issue
The tribunal had to decide whether the employee could bring an unfair dismissal claim despite having less than two years' service, and whether the employer was entitled to dismiss for gross misconduct and recover overpayments from wages.
The outcome
The tribunal struck out the unfair dismissal claim because the employee did not meet the two-year service requirement under section 108 of the Employment Rights Act 1996.
The wrongful dismissal claim failed because, although the employer's procedure was lacking, the conduct was properly classified as gross misconduct under the contract.
The unauthorised deductions claim also failed because the employer was contractually entitled to recover overpayments, and the employee was not entitled to notice pay.
Lessons & takeaways
- If you have less than two years' service, you generally cannot claim unfair dismissal unless you were dismissed for an automatically unfair reason like whistleblowing or discrimination.
- Even if an employer's disciplinary process is flawed, a tribunal may still find the dismissal fair if the underlying conduct amounts to gross misconduct under the contract.
- Employers can recover overpayments from wages if the contract allows it, but must follow proper procedures and give notice.
- Claims for wrongful dismissal (breach of contract) require showing the employer had no contractual right to dismiss without notice.
What this case shows in practice
This case highlights a fundamental barrier for many employees: the two-year qualifying period for unfair dismissal claims. The former employee of Gatwick Construction Limited had worked there for less than two years, so their unfair dismissal claim was automatically struck out. Even if the dismissal had been procedurally unfair, the law does not protect employees with short service unless the reason is automatically unfair (e.g., discrimination or whistleblowing).
The employee also brought claims for wrongful dismissal and unauthorised deductions. The tribunal found that while the employer's gross misconduct procedure was lacking, the conduct itself was serious enough to justify summary dismissal under the contract. This shows that a flawed process does not always mean the dismissal is wrongful.
What the losing side could have done differently
For the employee, the main obstacle was the two-year rule – something they could not change. However, they might have explored whether the dismissal was for an automatically unfair reason, such as asserting a statutory right. On the wrongful dismissal claim, the employee could have argued that the employer's failure to follow its own procedure meant the dismissal was not in accordance with the contract. The tribunal acknowledged the procedure was lacking but still found the conduct justified dismissal.
For the employer, the tribunal noted that the procedure was lacking. A more thorough investigation and clearer communication could have reduced the risk of a successful claim. However, because the employee had short service, the unfair dismissal claim was struck out anyway.
Why the result matters for similar claims
This case is a reminder that employment rights are not automatic. Employees with less than two years' service have limited protection against unfair dismissal. They should check if their dismissal falls into an automatically unfair category. For employers, it reinforces that even if the employee cannot claim unfair dismissal, a wrongful dismissal claim can still succeed if the contract is breached. Proper contractual procedures remain important to avoid liability for breach of contract.
Similar cases
Unfair dismissal claim struck out: employee had less than two years' service
A former employee's unfair dismissal claim against Real Coffee Bag Company Limited was struck out because she had not worked there long enough. The tribunal also dismissed her other claims after she failed to attend the hearing.
Warehouse operative dismissed after stopping work over child maintenance deduction
A warehouse operative with five months' service who stopped attending work after a child maintenance deduction from his wages was fairly dismissed for gross misconduct. The tribunal rejected all claims of unauthorised deductions and wrongful dismissal.
Unfair dismissal claim struck out due to less than two years' service
A former employee's unfair dismissal claim was struck out because they had worked for the employer for less than two years. However, they won a small award for unpaid notice pay.
Breakers Yard Manager with 17 years’ service dismissed for disobeying instructions: misconduct dismissal upheld
A Breakers Yard Manager who had worked for the company for 17 years without any prior warnings was fairly dismissed for gross misconduct after he ignored express instructions about a customer, sold tyres without authorisation and granted extended credit. The tribunal rejected all three claims.