The increase in the qualifying period for unfair dismissal claims

October 2011 saw a number of proposals for changes in UK employment law, the most significant being arguably the proposal to increase the qualifying period of service required for employees to bring unfair dismissal claims from 12 to 24 months.

Changes will take place on 6 April 2012...

It has now been confirmed that this change will take place on 6 April 2012 and is the latest development in the Government's workplace reforms which aims to increase business confidence to take on more workers.

Changes to the unfair dismissal rules follow the 'Resolving Workplace Disputes' consultation published in January of this year, which also suggested measures to encourage the early resolution of disputes, the speeding up of the tribunal process and measures to combat weak and vexatious claims. These combined proposals are hoped will reduce unfair dismissal claims by 2000 a year.

The qualifying period was in fact two years back in the 1980s and 1990s but was changed to one year in 1999 following a House of Lords decision (the Seymour Smith case) that a two year qualifying period was potentially discriminatory against women who tend to have shorter lengths of service than their male colleagues.

So, what will this change mean for employers?

Will it be easier for an employer to dismiss an employee without repercussions after 6 April?

It will no doubt be the case that fewer employees will be able to bring tribunal claims for unfair dismissal, and it may also be the case that the change could also encourage employees to remain in employment with one employer for a greater length of time. However, notwithstanding this change, employers will still be faced with challenges in relation to dismissals, not least where there are any potential issues of discrimination linked to sex, race, disability etc, as these claims require no qualifying period of employment. Such claims, should they succeed, are likely to be more damaging to employers as the amount of potential compensation to be awarded is uncapped and an employers' reputation may be damaged significantly by a finding of discrimination against it.

Employees who have less than the qualifying period...

Furthermore, employers must be aware that employees who have less than the qualifying period may also bring claims for unfair dismissal where they have asserted a statutory right, or blown the whistle.

Employers must be very careful about dismissing staff who have, for example asked for flexible working or time off for union duties. Employers should also be cautious about dismissing employees who are close to reaching the required qualifying period. An employee will be entitled to add on the statutory notice that they should have been given to their actual service. Furthermore, if the deadline is fast approaching an employer should communicate th dismissal decision either in person or over the telephone, in order to prevent an employee from arguing that as he had not yet read the dismissal letter due to him being away, he had not yet been dismissed and therefore had reached the required qualifying period. This was the case in the case of Barratt and should be a warning to employers.

To conclude, despite the changes in law regarding this area, there are still risks in dismissing any employee and it is advisable to seek legal advice before doing so.