We have encountered a few cases recently amongst some of our clients where the behaviour of an employee would have ordinarily been a straight forward dismissal. However, in these particular cases, we have advised to take a different approach because of the long length of service the employees in question has had.

When we are asked to provide support and advice in dealing with the poor behaviour, attitude or performance of an individual, one of the first questions we will ask is what their length of service is. Usually this is to ascertain whether it is more or less than two years, as this is the point at which an employee acquires full employment rights.

Whilst it still isn’t necessarily an entirely straight forward affair, most employers are aware that dismissing someone who has less than two year’s service is usually much less fraught than when they have more than two years.
Long lengths of service add another level of complexity to how disciplinaries might be handled however.

Taking a “worst case scenario” approach when assessing disciplinary and potential dismissal situations is usually good advice. Asking yourself what a tribunal judge might say if a dismissed employee decided to lodge an Employment Tribunal claim can be a good way to highlight flaws or weaknesses in your case. I can be difficult though, when so intrinsically involved in a situation, for employers to be truly objective.

We have noticed a tendency more recently for tribunals to attempt to keep people in their jobs. This may be driven by the ongoing high vacancy rate in the UK and the high proportion of individuals who are classed as economically inactive. There is also the view that long-serving employees have a deeper investment in their jobs, meriting efforts to sustain their employment. Rationally thinking, it’s true that longer serving employees amass considerable experience and, one would hope, loyalty to their companies, which does go against reasons for dismissal.

Ordinarily, employees who accrue a number of years of service with an employer do so because they knuckle down and get on with their job. They’ll also have an acceptable attitude and display good behaviour. Conflict can sometimes arise when there is change. For example, when new rules or working practices are imposed and the employee doesn’t like to break their routine or habits. Equally new employees might bring a disruption in the wider team and there is a period of storming; or a new manager brings a new approach.

Such conflict can create a situation where a long standing employee behaves in an unacceptable way, they become uncooperative or their productivity reduces, perhaps as a form of protest. There is often a danger that this behaviour is not dealt with properly however, because their long service gives them some kind of unwritten immunity.

Whilst we believe that an informal friendly approach can be a good first step in handling disruptive employees, failure to take matters seriously and deal with it formally should the behaviour persist, can lead to bigger issues later on. Without a record that policy and process has been applied in the past, a sudden significant sanction, such as a dismissal, is unlikely to be looked upon favourably by a tribunal judge.

So, where an informal quiet word does not have the desired effect, move promptly to a more formal approach, addressing the issues and documenting any conversations and actions taken. Written warnings will only stay ‘live’ for 12 months, but the fact that they have taken place in the past will demonstrate that a message was sent.

Employers should also look at any training or re-training that a longer serving employee has or has not undertaken. In cases where poor performance or misconduct is a recurring issue, the absence of adequate training or re-training can reflect poorly on the employer, suggesting a lack of commitment to helping employees improve.

What is considered to be acceptable behaviour in the workplace has changed considerably in recent years so it is key that training is effective, relevant, and updated as necessary to meet job requirements and behavioural standards.
As a rule of thumb then, if you find yourself in position where you are seriously looking at dismissing a long standing employee, ask yourself “How did it get to this?” Are they a repeat offender who has never been dealt with properly or you have put up with their behaviour for too long? Have you been remiss at providing suitable training or even a little lazy with it?

We’re not saying not to dismiss; there will be instances when it is the appropriate action. Just be careful that you’re not too quick to pull the trigger and end up in a tribunal. And of course, if you are in any doubt, we’re just a phone call away to provide you with advice on 01452 331331 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it.