We understand that the UK Department for Business, Innovation and Skills (BIS) has advised that the increase in the qualifying period for claiming unfair dismissal (from one year to two years) will only apply to employees whose employment begins on or after 6 April 2012. 

The position, as it was understood until now, was that employees with one year’s service would lose their right to claim unfair dismissal after 6 April 2012, until such time as they had acquired two years’ service.  Some employers may have been retaining underperforming employees in order to take advantage of this.  However, it appears that those existing employees will now retain their right to claim unfair dismissal.   In addition, any employee who was employed before 6  April 2012,  will acquire the right to bring such a claim after one year’s service.

Employers may wish to delay recruitment until after 6 April 2012 in order to ensure they are able to take advantage of the increase.

No formal announcement has been made to date regarding this aspect of the change and it will be subject to Parliamentary approval.   When the qualifying period was previously increased to two years in 1985 (later reduced to one year by the Labour Government in 1999) this was the basis upon which the increase was adopted and therefore this approach is likely to be approved this time.

A further update will follow when a formal announcement has been made.

This is a useful opportunity to remind employers that, while “one year’s service” is often referred to, an employee dismissed summarily can add their statutory notice entitlement and, by doing so, may get over the line.  Accordingly dismissals should take effect before employees have acquired 51 weeks or 103 weeks’ service.  However, employers should bear in mind that employees will retain the ability to get their foot in the door of the Tribunal, regardless of their length of service, by asserting (amongst other things) that their dismissal amounts to unlawful discrimination;  is for reasons connected with pregnancy, childbirth, or statutory maternity, paternity, adoption, parental or dependant care leave; is for a health and safety reason; is connected with rights under the Working Time Regulations 1998;  or that the principal reason for dismissal was the fact they were a whistleblower.

For further informaiton please contact  Alan Masson, Andrew Brown or your usual contact in the Employment and Pensions Unit.