Unfair dismissal – increase to qualifying period

Henry Doswell

I’ve heard that the government has decided to make changes to unfair dismissal laws. Do these changes affect me?

The qualifying period for claiming unfair dismissal increased from one year to two years on 6 April 2012. This was part of the government’s aim of streamlining the employment tribunal system by reducing the number of tribunal claims. It will only apply to employees who are employed on or after 6 April 2012 so those already in employment will not be affected. These changes are expected to cut the number of unfair dismissal claims by just over 3,000 per year. It will also allow employers to more easily dismiss employees that are no longer required or who are simply not suitable.

However, this does not affect an employee’s right to bring an automatic unfair dismissal claim. These types of dismissals have never required a qualifying period of employment. These include dismissals for pregnancy or maternity leave, whistleblowing, reporting health and safety risks or for asserting a statutory right such as the right to be accompanied at a disciplinary hearing.

The increased qualifying period may also increase the number of discrimination claims as employees find alternative ways to challenge their dismissal. Discrimination claims also do not require a qualifying period. This in turn may lead to increased costs in the employment tribunal for both Claimants and Respondents as discrimination claims are usually more complex to bring and to defend with tribunal proceedings lasting much longer.

The other possible outcome of increasing the qualifying period is that it may itself amount to discrimination under one of the protected characteristics. The last time the government introduced a two year qualifying period women argued that it was indirect sex discrimination because of the disparate impact on women due to them often having a shorter period of service. This ultimately failed on the basis that it could be objectively justified by the government due to the need to encourage recruitment during the economic recession. This time round it is more likely to be challenged by younger workers as age discriminatory. This could be more difficult for the government to justify.

In conclusion, it seems that the government’s aim of reducing the number of tribunal claims along with the associated cost may well be successful in the short term. However, it may have a reverse effect in the long term as discrimination claims look likely to increase. It has also significantly weakened the level of employment protection for employees at a time when they are already being subjected to economic hardship. Many believe that this decision will actually lead to greater insecurity in the workforce and thus restrict further economic growth. Only time will tell!

For further information or to obtain specific legal advice speak to an employment law specialist at ThomasMansfield on 020 7377 2829 or visit www.thomasmansfield.com.

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The information given in this article does not constitute legal advice.

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