23 Feb 11

Backward unfair dismissal proposal unfair

The Government has opened a consultation on reforming the employment tribunal service. One of the key proposals is to extend the qualifying period of service for unfair dismissal from one year to two years.

The Government says this will help employers take on new staff:

"One measure we propose is to extend the qualification period for employees to bring a claim of unfair dismissal from one to two years. We believe this will contribute to our overriding objectives of encouraging growth through giving businesses more confidence when they consider taking on people. Alongside the other measures proposed in this consultation document, we believe it may also help improve the employment relationship, giving more time to get the relationship right and, in a modest way, reduce the number of disputes that go to employment tribunals.

"This proposed measure would not affect the existing so-called 'day one rights' of people when they start work to bring a case for unfair dismissal, for example where they believe gender, race or some other form of discrimination has taken place or where someone is dismissed for exercising their legal rights, such as asking for a written statement or to be paid the National Minimum Wage. Nor would it change the basic principle that an employer must have a fair reason for dismissal and follow a fair process, such as the company's dismissal procedures. Where these separate 'day one' rights are not an issue, however, an employee would only be able to bring a case after two years, rather than one year as at present."

"We do not see this as a charter for businesses to sack people unfairly."

Voice believes that reverting to the two-year qualification period is a backward step.

Historically, this qualifying period had been reduced. Now the Government is proposing to increase it.

Yes, there have been many weak claims brought before employment tribunals, and they do need to be addressed. There are proposals in the consultation to increase the tribunal's power to strike out weak cases and increase the limit on deposit orders for the continuation of weak cases.

Voice does not support weak claims and will not take those it considers to be weak to tribunal.

Yes, the system is struggling to cope and employers and employees should be given reasonable chance to settle their differences without recourse to tribunals. However, proposals that apply to all claimants indiscriminately concern us.

The consultation document claims that "Business have told us of their concerns that the existing legislation is too weighted against employers when it comes to the decision to take on people making it feel a riskier step than some are prepared to take. There may also be a risk that the current one year period is too short for employers and employees to resolve differences they may have and that the one year qualifying period acts as an incentive to some employers to bring the relationship to an end earlier than is in everyone's interests."

Reverting to the two-year qualification period could tip the balance the other way and make the system "too weighted" against employees. A year is a reasonable length of time to decide a new employee's suitability, and there has to be some form of minimum qualifying period. Whatever that minimum, some employers will exploit it to "bring the relationship to end". A two year period would allow unscrupulous employers to employ someone for almost 24 months and then sack them unfairly without redress.

It also seems likely that there will there be fees for lodging tribunal claims (with further consultation on this in the spring) and the proposals include withdrawing the payment of expenses, to encourage parties to settle earlier. Such measures will surely make it more difficult for genuine cases to be brought.

Is the Government's real motivation a desire to cut costs? What price justice and individual rights?

Our concern is that vulnerable people will be put at risk by unscrupulous employers and this measure will become a "charter for businesses to sack people unfairly".

Do let us know your thoughts and experiences, which could help to inform our official response to the consultation, which closes on 20 April 2011. Voice's Official Response (Word) (16 March 2011)


A link to Voice's official response has been added above.

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