Employment law changes are bad news for employees

Employment specialist Anthea Christie considers the likely impact of a number of much-anticipated changes to employment law being introduced this month. Of particular concern to her is the doubling of the unfair dismissal qualifying period…

From 6 April, the qualifying period of employment before an employee can bring a claim for unfair dismissal will increase from one to two years.  Employees whose period of continuous employment began on or before 5 April 2012, however, will still be subject to the one year qualifying period.

The Government says this will give employers more flexibility and improve business confidence. They will be more willing to recruit workers and more able to dismiss poor performers. In reality, though, employers are usually able to determine within a few months whether an employee is unsuitable for them. It doesn’t need two years to reach this conclusion!

The Government also maintains that this will reduce the number of claims presented to the employment tribunal. However, the qualifying period doesn’t apply where the dismissal is for discriminatory or ‘whistle-blowing’ reasons. So this change is actually likely to generate an increase in the number of discrimination and ‘whistle-blowing’ claims.

Along with many others, I’m worried that the impact of an increase in the qualifying period will hit some groups harder than others. For example more women are likely to fall outside the qualifying period through taking time out to have and look after children. Whilst the Government accepts this concern, it does not consider that it will cause serious unfairness to any particular group. And it believes that extending the qualifying period is a reasonable way of achieving the legitimate aim of improving business confidence to recruit and retain staff.

I am greatly concerned that employees will no longer be able to challenge the lawfulness of their dismissal during the first two years of service. So they’ll have less stability and protection in what is already a very uncertain time for millions of workers.

Other changes being brought in at the same time include significant ‘tweaks’ to employment tribunal procedure (see Damian Brooks’s recent blog for more details). And a further re-vamp of the tribunal system is likely following a review by Mr Justice Underhill. This will probably include the introduction of fees for issuing claims and ‘compensated no fault dismissals’ which will enable small employers of less than 10 employees to dismiss an employee – with compensation – without the employee being able to pursue a claim.

All of these actual and anticipated changes are undesirable developments. They seem to be a move away from access to justice which, once upon a time, was one of the guiding principles behind the tribunal system. 

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