Government Clarifies Changes to Unfair Dismissal Qualifying Period

14 February 2012

The Government has published its draft legislation for increasing the amount of time that an employee will have to have been continuously employed before bringing an unfair dismissal claim to two years. The draft Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012 was published late last week.

If, as is very likely, the Order is enacted in its current form, it will mean that all employees employed on or after 6 April 2012 will have to have been in continuous employment for two years before they can bring a claim for unfair dismissal. So, if you take on an employee on 6 April 2012, they, unlike their colleagues employed prior to that date, will not be able to bring a claim for “ordinary” unfair dismissal against you one year after their employment started. They would only get protection after two years.

It is important to note, though, that employees whose period of continuous employment began or on before 5 April 2012 will still only have to wait one year before bringing a claim. The change in the law only applies to people employed on or after 6 April 2012.

It is also important to remember that these changes only apply to “ordinary” unfair dismissal claims. Certain categories of unfair dismissal, notably claims alleging dismissal by reason of a “protected disclosure” (a so called “whistleblowing” claim), do not require a fixed period of qualifying service and employees enjoy protection from dismissals for such reasons from day one and, of course, there is no qualifying period before employees have the right not to be fired for a discriminatory reason contrary to the Equality Act 2010.

But, for the majority of unfair dismissal claims, employers will find it easier to dismiss employees who start on or after 6 April 2012 after they have been employed for between one and two years than employees taken on before that date. It remains to be seen whether employers decide to put on hold the start dates of perspective employees for the next seven weeks or so in order that such staff have to wait longer for unfair dismissal protection.

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