Unfair dismissal qualifying period
29 May 2012
With effect from 6 April 2012 the
minimum qualifying period of continuous employment for the purposes
of claiming unfair dismissal has been doubled to two years.
This is a key policy decision in the
currently highly politicised arena of employment rights.
The Unfair Dismissal and Statement of Reasons
for Dismissal (Variation of Qualifying Period) Order 2012 affects
all employees starting work on or after 6 April 2012. Its
effect depends upon your perspective – whether you are an employer
or an employee. Since most managers and HR professionals wear
both hats, there is plenty of potential for mixed emotions in
respect of this change.
For an employer, there is greater scope for
assessing the performance of an individual employee and allowing a
longer period for development. Prior to this change an
employer would need to consider dismissing a less than satisfactory
employee prior to the anniversary of his or her recruitment.
To delay risked later having to follow a more structured
performance management programme or disciplinary procedure prior to
any dismissal in order to be assured of having a reasonable defence
to an unfair dismissal claim. Following the change, the
pressure to make a decision to dismiss before the employee gains
unfair dismissal rights, is moved back to the second anniversary of
recruitment. An employer may therefore reason that the change
is more likely to preserve jobs and reduce the risk of recruiting
staff who subsequently turn out to be unsuitable.
For an employee, this change means that you
can be thrown out of work at any time before the second anniversary
of your recruitment for any minor mistake or for no good reason at
all. The employer is not even under an obligation to explain
why you have been sacked. If you suspect that you have been
discriminated against because of a protected characteristic such as
your gender or race, then you can still make a claim to an
Employment Tribunal. But if your boss is unreasonably
demanding or just does not like you for some reason, you can be
deprived of your livelihood with no right of redress. This
seems more likely to ensure that anyone with less than two years'
service feels extremely insecure in work and therefore less likely
to want to spend or invest in the economy. Also anyone
thinking of moving to a new job will be mindful that it will now
take two years to acquire the statutory right not be unfairly
The rationale for this change is said to be to
encourage employers to recruit and to stimulate growth. The
evidence that this change will achieve that aim is however,
currently thinner than Vince Cable's hair. As Dr Cable
himself said, in response to other employment reforms proposed by
Conservative pin-up boy Adam Beecroft – "it is not the role of
Government to scare the wits out of people". This
demonstrates that it is not just managers and HR professionals who
wear two hats in this debate, it is also the Secretary of State for
Business, Innovation and Skills – coalition partner to the
Conservatives and Liberal Democrat MP mindful of the pasting his
party received from the electorate in the recent local
Kenyon is a partner and Head of
the Employment and Pensions
Group at Field Fisher Waterhouse LLP.