Changes to the right to claim unfair dismissal – Paul Housego

Paul Housego

The Government has announced some very far reaching changes to the rights of workers… writes Workplace contributor and labour lawyer of Beers Solicitors, Paul Housego as he examines the issue of the right to claim unfair dismissal.

The Government has announced some very far reaching changes to the rights of workers. On the face of it these appear very good news for employers, and may choke off a lot of vexatious claims (along with a lot of meritorious ones).

A move back to a 2 year qualifying period for the right to claim unfair dismissal will make it possible to dismiss more people without the risk of a claim, and those who resign in the first 2 years won’t be able to claim constructive dismissal. Over the years this period has varied from 2 years to 1 year, to 6 months and then back to a year.

Coupled with this is a move to charging fees to claimants – £250 to lodge a claim and a whopping £1,000 to get a hearing date. This appears no more than a way of trying to manage the number of hearings down – it costs £1,000 a day just for the members of the tribunal, so any reduction in the number of hearings is an immediate cost saving to the Treasury. You get it back if you win, apparently, but I doubt it will be refunded if a case settles.

These changes should cut the number of cases by a substantial percentage, but the one rule of universal application is the law of unintended consequences. The two year qualifying threshold will affect more people, who will try to find ways around it. So expect more public interest disclosure cases, more cases alleging dismissal for asserting a statutory right, and lots of discrimination cases of all sorts. Now there is perception and association discrimination as well there are likely to be lots more of such claims anyway. None of these have any qualifying period of service. They are always much more difficult to defend and take longer, there are injury to feelings awards, uncapped awards and interest. All of which may well mean that while there may be fewer claims there may be no saving in time or money in fighting them, and the ones that are fought will be more expensive to fight.

Of course there will be much gamesmanship too. Low offers to settle before a hearing date is set, as the claimant will have to shell out £1,000 soon – but if that bluff is called, the cost of settling is likely to increase.

As the cost of going to an Employment Tribunal is going to be much more than going to the County Court, it may be that claimants will try and bring cases (such as for wages or for notice pay) there – there is no costs risk for claimants claiming less than £5,000.

However, it is too soon to be sure what will happen or when. The timescale for this has just been moved back to December 2013, and those on low incomes – many security guards – may pay no fees, and a sliding scale is now suggested.

If or when it happens, it may be as well to discuss with your lawyer the approach you are going to take to new cases.