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Unfair dismissal: One-year qualifying period

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18 February 2012: Unfair dismissal – One-year qualifying period dismissed

A new piece of draft legislation has been approved by both Houses of Parliament that will affect your employees’ ability to sue you for Unfair Dismissal.

Any staff you employ on or after 6 April 2012 will have to be employed for two years before they can claim for unfair dismissal or request a statement of reasons for dismissal.

However, any employees that started working for you on a continuous basis prior to 6 April 2012, will still be able to pursue an unfair dismissal claim after only one year’s service.

There are no changes to discrimination law and employees remain able to bring discrimination claims from day one of their employment – there is no qualifying period.

There is an argument to say that this increase in the qualifying period for unfair dismissal will encourage those employees with less than the required service to bring a claim for discrimination as an alternative.

Discrimination claims are often complex. Therefore, now is a good time to “tighten up” any equal opportunity, discrimination or harassment policies that you may have and ensure they are communicated to all employees.

Flint Bishop clients can download the latest compliant policies on equal opportunity, discrimination and harassment by logging onto the Document Bank.

If you are unsure where you stand with employees on these issues, you are facing unfair dismissal or discrimination claims or you want assistance with amending and/or implementing company policies, contact our Employment & HR team.

22 November 2010: Unfair dismissal – Government considering increasing the qualifying period

This week Lord Young, who has been tasked by the Prime Minister with reviewing the help given to smaller firms, confirmed that he will be exploring the possibility of increasing the length of service that an employee requires before they become eligible to make an unfair dismissal claim.

It is important to note that the qualifying period for unfair dismissal claims does not give an employer blanket protection against employment tribunal claims for the first year of employment. There are some exceptions* to the rule where there will be no qualifying period whatsoever depending on the circumstances of the dismissal. Employers should also be aware that whilst they may be protected from some unfair dismissal claims for the first year of employment, there are other rights that an employee will have, such as discrimination rights, that do not require any particular length of service.

Since June 1999 the qualifying period for unfair dismissal claims has been one year. The Government is considering whether by increasing the length of this period to two years the number of spurious claims against employers by disgruntled employees will be reduced, therefore saving employers thousands of pounds in defending such claims.

This proposal is one of a number of measures that Lord Young will be considering in an attempt to boost medium and small sized businesses. He is due to report back on his findings in spring 2011 and we will keep you up to date as and when more information is available.

* Exceptions:

  • dismissal for trade union membership or activities or for non-membership of a trade union
  • dismissal on maternity-related grounds
  • dismissal related to paternity leave
  • dismissal related to adoption leave
  • dismissal related to the right to request flexible working arrangements
  • dismissal for having sought, in good faith, to exercise a statutory employment protection right
  • dismissal for taking, or proposing to take certain specified types of action on health and safety grounds
  • dismissal of a shop worker or betting worker, subject to certain conditions, for refusing, or proposing to refuse to work on Sundays; or for giving, or proposing to give, an “opting-out” notice to his or her employer
  • dismissal for performing, or proposing to perform, any duties relevant to an employee’s role as an employee occupational pension scheme trustee
  • dismissal for qualifying for the national minimum wage or seeking to enforce a right to it (or because the employer was prosecuted as the result of enforcement action taken by the employee)
  • dismissal for exercising rights under the Working Time Regulations 1998
  • dismissal for making a protected disclosure within the meaning of the Public Interest Disclosure Act 1998
  • dismissal for performing, or proposing to perform, any duties relating to an employee’s role as an employee representative or as a candidate to be a representative of this kind or for participating in the election of such a representative
  • dismissal for taking or seeking to take parental leave
  • dismissal for taking or seeking to take time off for dependants
  • dismissal for reasons relating to the Tax Credits Act 2002
  • dismissal on grounds related to trade union recognition procedures
  • dismissal for exercising or seeking to exercise the right to be accompanied at a disciplinary or grievance hearing, or to accompany a fellow worker
  • dismissal for reasons relating to the Transnational Information and Consultation of Employees Regulations 1999
  • dismissal on grounds related to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000
  • dismissal for taking lawfully organised official industrial action lasting eight weeks or less (or more than eight weeks, in certain circumstances), where the action started on or after 24 April 2000
  • dismissal on grounds related to the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002
  • dismissal for reasons relating to the European Public Limited-Liability Company Regulations 2004
  • dismissal for reasons relating to the Information and Consultation of Employees Regulations 2004 for undertakings with 150 employees (from 6 April 2007 for undertakings with 100 employees and from 6 April 2008 for undertakings with 50 employees)
  • dismissal on grounds relating to jury service
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