Are you a protected employee? 

If an employee has worked in continuous employment for the same employer for two years, then they are what is considered a protected employee. A protected employee has access to all the employment rights as provided for by statute in the United Kingdom. 

The two year timeframe is referred to as a ‘qualifying period’. Both employers and employees should be aware that this period must be continuous; it cannot be made up to two years over a longer period. 

Unfair dismissal 

Generally, an employee will need the two year qualifying period to bring a claim in the Employment Tribunal for unfair dismissal. There are some exceptions, though these are rare. Employees can bring claims after two years for events that have happened within that first two year period. 

A protected employee can also not be dismissed without a fair reason. By law, before the two year period, an employer can dismiss an employee without demonstrating a fair reason, as the statutory protection has not started yet. Before the two year period, an employee can be dismissed lawfully without investigation or warning. In such circumstances the employer would only need to provide the employee with their contractual or statutory notice (whichever is greater) and any other rights they are entitled to under their contract or statute. There are of course some exceptions to this including TUPE and discrimination. 

Reasons for fair dismissal 

After the qualifying period, an employer can only dismiss someone if they can demonstrate one of the five fair reasons under the Employment Rights Act 1996, namely; capability, conduct, redundancy, illegality or some other substantial reason. The some other substantial reason (SOSR) category is a catch all provision, and is used often in employment law. 

Unprotected employees  

An employee who has not worked for the employer for two years is still entitled to any statutory notice period and statutory minimum pay along with any other contractual or statutory benefits (such as holiday pay), and this should be included in the employment contract. 

Although an employee who is not protected can not often bring claims in the Employment Tribunal, the employer should be aware that they can still be automatically unfairly dismissed, and are still eligible to bring contractual claims in the courts, such as breach of contract. An employee is always going to be able to bring an unlawful discrimination claim, even if they have worked for less than two years (or at any time, including interview stage), so employers should consider the same. 

In summary  

In essence, a protected employee is someone who has worked for the same employer for a two-year period, and therefore will gain all the statutory protections in UK law. The main one being that they cannot be dismissed without the employer showing there is a fair reason and a fair procedure has been followed.