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New Year − New Employment Laws

Fiona Martin

Fiona Martin

The Coalition Government announced in 2011 that it wanted to reform and simplify employment law and reduce red tape for business.

The most immediate change (from April 6, 2012) is the increase to the qualifying period for an employee to bring a claim of unfair dismissal from one to two years. The Government says this will ‘provide more time for employers and employees to resolve difficulties, give employers greater confidence in taking on people and ease the burden on the Employment Tribunal process’.

But few employment lawyers believe this move will have the intended consequences. And I am one of them.

Employers employ and cut staff because of the needs of the business, not because they fear the costs involved in dismissing them. No employer likes hiring someone, then having to let them go when money gets tight. What would have a far greater impact on employment numbers would be tax breaks for employing more people.

When it comes to under performance, new recruits who do not perform can be perfectly well managed within a six-month probation period. One year is more than enough time for an employer to judge an employee’s competence. Is it too much for an employee to expect to be treated fairly having worked for an employer for a year?

But on top of the questionable ability of these proposals to deliver the results the Government is looking for, there is a huge risk they will cause confusion and lead to an increase in more complicated claims in the Employment Tribunal. Unhappy employees, who believe they have been treated unfairly, but have been employed for less than two years, will have no option but to try and prove that their dismissal was due to their protected characteristics – such as race, sex etc – or for whistle blowing or for raising health and safety issues. None of these claims has a length of service requirement.

In addition, we still do not know whether there are going to be any transitional arrangements. If there aren’t, this will mean that employees who currently have one year’s qualifying service on 6 April will lose their right to bring a claim until they have two years qualifying service!

More in my next post on the Government’s other intended changes in 2012, including its fundamental review of Employment Tribunal fees, a proposed consultation around ‘protected conversations’ and its surprising intention to review the Acas disciplinary and grievance procedures.

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