This April sees the implementation of several important changes to employment law. The stated aim of these was to cut red tape, make life easier for business and to reduce the volume of tribunal claims. I thought it might be helpful to explain the basics of the headline change so you don’t fall foul but also to have a look at whether it will actually make any difference. Otherwise, frankly, what was the point!
Given the publicity you have probably already heard about this. However, just in case, from 6 April 2012, the minimum qualifying period of continuous employment necessary to claim unfair dismissal increased from one to two years. This means in most cases it should be easier and therefore less risky to dismiss an employee during that extended period without having to follow a complex process. The idea behind this was to reduce procedural burdens for employers and at the same time cut the number of claims. The government said they also thought employers would be more likely to take a risk and employ an individual if they had longer to ‘assess their suitability’ and that this would therefore help kick start the economy.
Well so far this all sounds good for employers……. However, as was ever the case, all is not quite a clear cut as it may initially seem.
In particular, the first technicality to be aware of is that the change does not affect employees whose period of continuous employment began before 6 April 2012. Accordingly, any employee who joined the employer before that date will still only need one year’s service to claim unfair dismissal. So beware and ensure you get your dates right for each individual employee as a mistake could be costly.
Secondly, there are still numerous other claims besides unfair dismissal which employees can bring with less than two years’ service. For example, if you are accused or discriminating against an employee or having dismissed them for ‘blowing the whistle’ they will not be prohibited from bringing a claim no matter how short a time they have been with you. My concern here is that in recent years I have seen an increasing numbers of such claims coming across my desk from individuals. Of course, some of these are completely valid but many are pretty spurious and have obviously been brought by individuals who are disgruntled but do not have the requisite service to claim unfair dismissal. Instead they have tried to shoe horn in another type of claim with the hope that the employer will settle before it ever gets before a Judge. My biggest fear is that making it even harder to claim unfair dismissal will just lead to a further increase in this sort of claim. For example, if you have been with a business for nearly 2 years and then get unceremoniously sacked you are going to be pretty unhappy and much more likely to seek some sort of recompense in any way you can.
Unfortunately discrimination and whistle blowing claims also tend to be more expensive and complicated to deal with when compared to a straight forward unfair dismissal claim! As such both employers and the Government might get a rather nasty shock once the change has bedded in as we may just be substituting one type of claim for another.
In addition, I have to ask myself was this change really needed? Few employers I have spoken too feel they need over a year to assess the suitability of an employee! Happy to hear your views!
Unfortunately my opinion is therefore increasingly that this could turn out to be at best a bit of a damp squib and at worst an own goal! Either way it is now the law and my recommendation if you are looking to lose an employee before they have accrued two years’ service is that you have a careful look to check that there are no obvious risks which could enable them to bring any other sort of claim. If in doubt seek advice and/or ensure you can show good (and non discriminatory!) justification together with supporting evidence for why you are letting them go. Then if they do try and bring another sort of claim you should be in the best shape to try and defend it.