Why is the Government making it harder for employees to claim for unfair dismissal?
The proposal to extend the qualifying period for employees from 1 to 2 years may be welcomed by employers but is it really necessary?
Most employers will have experienced the frustration of being unsure of how to properly deal with an employee whose conduct and performance is poor. Often poor behaviour is tolerated for months and years because the employer is worried and unsure about how to deal with the procedure. Unfortunately, things are often allowed to go on unmanaged with the result that other employees begin to feel demoralised and the business suffers. The employee in question may be capable of fully reforming but is unaware of the problem.
Most employers know that if the employee's notice period expires before they have served one year with the employer then the employee may not bring a claim in the tribunal for unfair dismissal (there is no qualifying period for claims based on discrimination and other special issues). Absent special circumstances, if the employer does not think the employee is suitable for the job they simply serve contractual or statutory notice. The government proposes extending that period of grace for employers from 1 to 2 years. There are also proposals for protected conversations (off the record chats) with poorly performing employees.
Both these measures will be welcomed by employers but they do not get to the root of the problem - that some employers still hold the view that once employment rights are engaged it is difficult, unwieldy and in practical terms impossible to performance manage, discipline and dismiss employees.
Any employer feeling that way will do better under the new proposals but will still have the problem with employees who have more than 2 years continuous employment - and that's a lot employees. To ask a question or for more information on HR issues please click here.
Jonathan Waters has over 12 years of experience advising businesses in relation to commercial disputes and how to avoid or resolve them. He has a particular interest in construction law and adjudication, and he is currently studying for an Msc in Construction Law & Dispute Resolution at King's College. Before starting Helix Law, he was the partner in charge of Commercial Litigation, Employment Law and Property Litigation at Stephen Rimmer LLP. He has a degree in Business Administration and before qualifying as a solicitor he worked in industry and investment banking for over a decade.
This article is written to raise awareness of the issues it discusses and it may not be updated after it is first written, even if the law changes. It is not intended to be legal advice and cannot be relied on as such. Helix Law is not responsible or liable for any action taken or not taken as a result of this article. If you think the matters set out affect you and you wish to apply them to your particular circumstances then we are happy to give you free initial telephone advice.