Most people will have heard that employees will have to work 2 years before they can make a claim to an employment tribunal that they have been unfairly dismissed, writes Infologue.com Workplace contributor and labour lawyer of Beers Solicitors, Paul Housego.
But do be careful. It is never as simple as a headline. I hope most people have checked out what the new regulations actually say. I can put the important part really simply. FOR THOSE THAT START WORK AFTER APRIL 2012 THE QUALIFYING PERIOD IS 2 YEARS.
The trap for the unwary leaps out when you stop and think for a moment. If someone starts in March 2012, and is dismissed after April 2013, then even though the new rule will have been in a year, that person will qualify to bring an unfair dismissal claim.
It will not be possible to have a simple rule that 2 years qualifying period applies to all until April 2014. Until then it will be necessary to check an employee’s start date to see whether there is a risk of an unfair dismissal claim.
Of course it is sensible to review every employee before the qualifying period has been worked, and this change may be helpful to everyone. Employers will be able to give employees more opportunity to improve rather than exiting them before the year runs out.
Housego’s law of unintended consequences will apply, as is it is of universal application! If people can’t claim unfair dismissal they will try to claim something else which doesn’t need a qualifying period. Some form of discrimination, or public interest disclosure, or being dismissed for asserting a statutory right, or for a health and safety reason, or for a reason related to trade union activity. Since this is quite a long list, and since discrimination now includes associative discrimination, there is a lot of scope for claiming. Such claims can be very time consuming and expensive to defend, and of course there is no limit on awards.
So, just a reminder of the standard caution, before you take action against any employee just run through the risk factors for such claims, and ensure that if they are present that you can show that in no sense whatsoever (it is a high hurdle for employers) can a protected characteristic be thought to be behind the action you are to take.”