LORD Young of Graffham confirmed this week that the government is considering increasing the qualifying period for claiming unfair dismissal from one year to two. The last change to the qualifying period was in 1999 when it was changed from two years to one, so this looks like a backwards step. In fact, some favour that the time-period is removed altogether, arguing that it should never be permissible to unfairly dismiss someone, however long they have been employed for.
From an employer’s perspective the news is good: it means that employers will in effect have two years to get rid of someone easily. That said, employers are used to the one year threshold and a year should really be enough time to evaluate an employee.
Where it will really help employers is in redundancy situations where they currently need to show that certain procedures have been followed to defeat an unfair dismissal claim – consultation, consideration of suitable alternative employment, fair and objective selection. This will now be easier to prove.
For employees, the new regime will add to uncertainty for anyone with less than two years’ service and will mean that people can be dismissed more easily for a greater period of time. In redundancy situations they have less times to argue about the procedures followed. Furthermore, employers are often willing to add a little on to the statutory redundancy payment, partly because they may feel it right or generous to do so but also partly because doing so makes it less likely that employees will challenge the procedures. When it is harder to pursue cases, employers will be less likely to do this.
More generally in 2009/2010 there were nearly 400,000 tribunal claims, nearly 15 per cent of which were unfair dismissal claims. If the threshold changes, the number of unfair dismissal claims is likely to decrease. But it seems likely that the number of other claims – discrimination and, in particular, whistle blowing and age related discrimination – will increase as dismissed employees will look around for other bases on which to claim. This change could hit employees hard.
Paul Mader is head of the employment department at Dawsons LLP