Can I claim unfair dismissal with less than two years' service?

The short answer

For an ordinary unfair dismissal claim, you need two years' continuous service with your employer at the date of dismissal. Less than that and the Employment Tribunal has no jurisdiction to hear it — they will strike it out, often at a preliminary hearing.

But that's only one route. With less than two years' service you can still bring:

• Automatically unfair dismissal claims (no service required)
• Discrimination claims under the Equality Act 2010 (no service required)
• Wrongful dismissal / breach of contract claims for unpaid notice (no service required)

The two-year rule blocks one common type of claim. It does not leave you defenceless.

Where the two-year rule comes from

Section 108 of the Employment Rights Act 1996 says that the right not to be unfairly dismissed under section 94 applies only to employees who have been continuously employed for two years ending with the effective date of termination.

It applies to:

• Most ordinary misconduct dismissals
• Most ordinary capability dismissals (sickness, performance)
• Ordinary redundancy dismissals
• "Some other substantial reason" (SOSR) dismissals

It does not apply to the exceptions below.

How tribunals enforce the rule

Tribunals enforce the two-year cut-off strictly. They count by calendar months, not by working days, and the effective date of termination (EDT) is the date the contract ends — usually when notice expires, or immediately if you're dismissed without notice.

In HGV driver dismissed for misconduct: no jurisdiction because service under two years, an HGV driver with one year and one month of service was dismissed for misconduct. Whatever the merits of the dismissal, the tribunal had no power to hear it — claim struck out.

The rule can bite hard when the timing is close. In Estate Manager dismissed just before two-year service threshold, the claimant was dismissed eight days before he would have hit two years' service. Tribunal: no jurisdiction. He had been employed for one year, eleven months, and 23 days. Eight days short.

This pattern — employers timing dismissals to land just before the two-year mark — is common enough that it has its own name in HR circles ("the two-year cliff"). Tribunals can't fix it under the unfair dismissal route alone.

When the two-year rule does NOT apply

This is where most "less than two years" cases either succeed or fail. The Employment Rights Act and other statutes carve out a list of dismissal reasons that are automatically unfair with no service requirement. The main ones:

• Whistleblowing — making a "protected disclosure" under Part IVA ERA 1996
• Asserting a statutory right — e.g. asking for written terms, holiday pay, or the minimum wage
• Pregnancy, maternity, or related reasons
• Trade union membership or activities
• Acting as an employee representative (e.g. for TUPE or collective redundancy consultation)
• Health and safety — raising genuine concerns about workplace safety
• Working time — refusing to work in breach of the Working Time Regulations
• Jury service
• Family leave (paternity, adoption, parental, shared parental, dependants)

For each of these, you can claim "automatically unfair dismissal" from day one. Compensation is uncapped for whistleblowing and health and safety dismissals (and any dismissal connected with a protected characteristic, under the Equality Act).

But the burden of proof is on you to show the principal reason for dismissal was a protected reason. That's a real hurdle.

In health and safety dismissal claim fails: short service and conduct issues, a manufacturing employee with one month's service claimed his dismissal was automatically unfair because he had raised ladder and COVID concerns. The tribunal accepted he had raised the concerns — but found the principal reason for dismissal was his aggressive behaviour and a confrontation with his manager, not the health and safety disclosures. Claim dismissed.

Tribunals look closely at timing, evidence of the protected act, and what the employer actually said about the dismissal. Raising a concern shortly before being dismissed is not enough on its own — you have to show it was the reason.

Other claims that don't need two years

Discrimination

The Equality Act 2010 protects against discrimination because of a protected characteristic:

• Age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation

There is no service requirement for any discrimination claim. Compensation is uncapped, includes injury to feelings, and is often substantial. If your dismissal had anything to do with one of those characteristics — even partly — a discrimination claim is usually a stronger route than trying to fit the dismissal into an automatically unfair category.

Wrongful dismissal (breach of contract)

If your employer failed to give you the contractual notice you were owed, you can claim wrongful dismissal — a breach of contract claim — regardless of length of service. The award is normally the net value of the notice period.

This is a useful safety net. In breach of contract claim succeeds despite short service bar on unfair dismissal, the employee was barred from bringing unfair dismissal because of short service — but won a breach of contract claim for unpaid notice and was awarded £2,595.99. Not life-changing, but real.

The cap on tribunal breach of contract claims is £25,000. If your notice period would have been worth more (e.g. a senior employee with six months' notice), you'd need to bring it in the civil courts instead.

Statutory redundancy payment

You need two years' service for a statutory redundancy payment too. Below that, only contractual redundancy applies (if any).

What about ACAS Early Conciliation?

Yes — you must still go through ACAS Early Conciliation before any tribunal claim, including automatically unfair dismissal and discrimination claims. The deadline is the same: three months less one day from the effective date of termination.

Be aware of costs risk

Bringing a tribunal claim when you clearly lack jurisdiction can attract costs orders. In insufficient service: unfair dismissal claim struck out, costs order, the claimant's unfair dismissal claim was struck out for lack of service, his unauthorised deductions claim was dismissed, and he was ordered to pay £1,000 in costs for leaving the hearing partway through. Costs orders against claimants in tribunal cases are rare — but not impossible if you push a hopeless claim.

Checklist if you've been dismissed before two years

1. Check your exact start date and dismissal date. Continuity of employment includes statutory periods that count (e.g. some redundancy and parental leave). Eight days short can still be eight days short — but check carefully.
2. Identify the real reason for dismissal. If you raised a grievance, made a disclosure, were pregnant, or had any protected characteristic, ask whether that played a part.
3. Ask in writing for the reasons for dismissal. Less than two years' service doesn't give you the s.92 ERA right to a written statement, but employers often provide one anyway.
4. Check your notice. If you weren't given proper notice or pay in lieu, a wrongful dismissal claim is available regardless of service length.
5. Contact ACAS for Early Conciliation within three months less one day.

See real cases

Six tribunal decisions where length of service was decisive — both ways.

Disclaimer

This is general legal information, not legal advice. Whether a specific dismissal fits one of the "automatically unfair" routes depends heavily on the facts. Speak to ACAS (0300 123 1100), Citizens Advice, a trade union, or a qualified employment solicitor before acting.