Less than two years' service: unfair dismissal claim struck out, but notice and holiday pay awarded
A former employee who was dismissed without notice after less than two years' service had their unfair dismissal claim struck out, but won £1,514 for notice and holiday pay.
1 min read · Last updated 19 May 2026
Key facts
- The claimant was employed by the respondent for less than two years.
- The claimant's unfair dismissal complaint was struck out due to insufficient service.
- The claimant was dismissed without notice.
- The claimant worked an average of 54.62 hours per week at £18.00 per hour.
- The respondent failed to pay the claimant for 2.7 days of accrued holiday pay.
- The respondent did not attend the hearing and entered no response.
Timeline
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First judgment striking out unfair dismissal claim
Employment Judge M Butler struck out the unfair dismissal complaint because the claimant had less than two years' service.
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Substantive hearing for remaining claims
Employment Judge Leach heard the claims for notice pay and holiday pay. The respondent did not attend.
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Judgment on notice pay and holiday pay
The tribunal found the claimant entitled to £983.16 for notice pay and £530.90 for holiday pay, total £1,514.06.
The legal issue
The tribunal had to decide whether the employee had sufficient service to bring an unfair dismissal claim and whether the employer breached contract by dismissing without notice and failing to pay accrued holiday pay.
The outcome
The tribunal struck out the unfair dismissal claim because the employee had less than two years' continuous service, as required by section 108 of the Employment Rights Act 1996. The employer did not attend the hearing or enter a response.
The tribunal found the employer breached contract by dismissing without notice. The employee was awarded:
- Notice pay: £983.16 (one week's gross pay based on average 54.62 hours/week at £18/hour)
- Holiday pay: £530.90 (2.7 days accrued but untaken holiday)
- Total: £1,514.06
Lessons & takeaways
- Employees with less than two years' continuous service generally cannot claim unfair dismissal, unless the dismissal is for an automatically unfair reason such as whistleblowing or discrimination.
- Even if an unfair dismissal claim fails, employees may still be entitled to notice pay and accrued holiday pay if the employer fails to provide them.
- Employers who fail to attend tribunal hearings or respond to claims risk default judgments and may be ordered to pay the full amount claimed.
- Calculating notice pay for variable hours should be based on average weekly hours worked over the preceding 12 weeks (or the entire employment if shorter).
This case highlights the strict two-year service requirement for bringing an unfair dismissal claim. The employee, who had worked for Fox Networking UK Ltd for less than two years, was dismissed without notice. The tribunal had no choice but to strike out the unfair dismissal complaint, as the law is clear: section 108 of the Employment Rights Act 1996 requires at least two years' continuous service.
However, the story did not end there. The employee also claimed breach of contract for notice pay and holiday pay. Because the employer did not attend the hearing or file a response, the tribunal accepted the employee's evidence. It found that the employee worked an average of 54.62 hours per week at £18 per hour, and was entitled to one week's notice. The award of £983.16 for notice pay was calculated on gross pay, reflecting that it would be taxed as Post Employment Notice Pay.
What the employer could have done differently
Fox Networking UK Ltd could have avoided this outcome by giving proper notice or paying in lieu of notice. Failing to pay accrued holiday was also a clear breach of the Working Time Regulations. By not engaging with the tribunal process, the employer lost the chance to challenge the amounts claimed or to argue any deductions.
Why this matters for similar claims
For employees, this case is a reminder that the two-year service rule is a hard barrier for ordinary unfair dismissal claims. But it also shows that other claims – such as breach of contract for notice pay or unlawful deductions for holiday pay – are not subject to the same service requirement. Even without the unfair dismissal claim succeeding, the employee recovered over £1,500.
For employers, the message is clear: failing to pay notice and holiday pay can lead to tribunal awards even when the employee cannot claim unfair dismissal. Ignoring tribunal proceedings only makes matters worse.
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