It Takes Two – increasing the qualifying period for unfair dismissal

As we have previously reported, the qualification period for employees to claim unfair dismissal will rise to 2 years from 6 April 2012.  This change will also apply to the right for an employee who has been dismissed to request written reasons for dismissal from their former employer.

Strictly speaking this right will accrue 1 week before the employee reaches 2 years’ service (i.e. at 103 weeks), because the employee can add on their statutory minimum notice period of one week to achieve the qualifying period.

What has only recently been confirmed is that the change will not affect existing employees.  It had previously been thought that existing employees with less than 2 years’ employment on 6 April would lose any protection they had, but this is not now the case.  The Government have confirmed that the change will only apply to employees employed on or after 6 April 2012.

Some employers are already choosing to defer recruitment for certain positions until after 6 April 2012 so as to ensure that new starters will have to work 2 years before they qualify to claim unfair dismissal. While this may be right for some organisations, most employers find that they are able to deal with any issues within the first year of service in any event.

Although some commentators have predicted that we will see a significant reduction in claims, Employment Tribunal statistics show that the number of people claiming unfair dismissal with between 1 and 2 years’ service is only a small percentage of the total claims brought. In our opinion the change is likely to lead to an increase in claims of other types, such as discrimination and whistleblowing, which do not require a qualifying period.

The change to the qualifying period is also potentially going to be the subject of challenge on the grounds that it discriminates against women (who are less likely to achieve two years’ service due to breaks for childcare) and against younger workers.

If you have any questions about this issue or any other area of employment law, please do get in touch with our friendly team – 01243 836840 or [email protected]