As we reported last month, the qualifying period in order to bring a claim of unfair dismissal is being restored to two years. Although the change will come into force this April it will only apply to employees whose employment commences on or after 6 April 2012. It will therefore take some time for the change to have a practical impact for employers.
For example, someone who commences employment on 5 April 2012 will secure protection from unfair dismissal from 5 April 2013, whereas someone who commences employment on 6 April will not achieve the same level of protection until 6 April 2014.
However, it is vitally important for employers to remember that there are unfair dismissal claims for which there is no qualifying period so that protection from unfair dismissal is available from day one. These are chiefly claims resulting from the assertion of statutory rights and those which can lead to findings of automatically unfair dismissal. Subscribers should check our employment law guide for details of those unfair dismissal claims in respect of which the qualifying period does not apply.
It is equally important to remember that the qualifying period only applies to unfair dismissal claims. As I mentioned in our blog last month it is widely anticipated that the increase in the qualifying period for protection from unfair dismissal will lead to an increase in discrimination claims since many factual circumstances can lead to claims on both grounds. If that does happen then it will not be welcomed by employers, for whom discrimination claims present an entirely more expensive and complicated burden. The absence of compensation limits for discrimination claims (unlike unfair dismissal claims) can also operate as a disincentive to settlement, along with the reluctance of employers to concede that they have engaged in conduct which is or might be perceived as discriminatory.