The top headline news this month has to be the mixed bag of employment law proposals announced as “the most radical reform to the employment law system for decades“. And what a mixed bag it is – everything from tidying up the unintended consequences of statutory drafting to a root and branch review of employment tribunal procedure by way of revisiting some familiar old ideas. Opinion is, of course, divided as to how effective the proposals will be, not always along traditional employer/employee lines, but some at least seem welcome in all quarters – such as the introduction of a portable CRB check.
Many of the measures announced are aimed at reducing the numbers of cases going into the employment tribunal system, speeding up resolution of cases once they get there, and of course keeping costs down – for the government, rather than for employers or employees.
One of the biggest headline-grabbers has been the increase of the qualifying period for unfair dismissal protection from one year to two. The rationale for this seems to be that there is a perception in business that it will reduce the risk involved in recruitment. The government acknowledges that the change will not have as much impact as it originally thought, because many claims include both unfair dismissal and other claims where no qualifying period is required, such as discrimination. Following the change, which is due to come into force in 2012, employees who don’t qualify for unfair dismissal protection will be more likely to make discrimination claims in the hope of finding a remedy – so there may not be that much of a reduction on the number of claims overall.
The change will in effect revert to the position which applied until 1999. Prior to that, many claims had been made by women with between one and two years’ qualifying service who argued that the two year qualifying period had a disproportionate impact on women and was unlawfully discriminatory. At that time the House of Lords found that the qualifying period was indirectly discriminatory but that it was a justified measure. The government is now saying that there will not be a considerably disproportionate impact, so that change will not be unlawful, and also that in any event, the increase is justified as a means of encouraging recruitment. In today’s context these assertions are almost certain to be challenged.