| Unfair dismissal changes: A two year wait for fair treatment? |
| Thursday, 03 February 2011 05:44 |
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The employer can theoretically dismiss the employee unreasonably and unfairly for any reason or no reason at all.
The employer can theoretically dismiss the employee unreasonably and unfairly for any reason or no reason at all. As a response to the economic crisis and the high levels of unemployment the Government is proposing to extend the qualification period for unfair dismissal rights to two years’ service. Most employers will be aware that employees currently obtain the right not to be unfairly dismissed once they achieve one year’s service.Prior to this the employer can theoretically dismiss the employee unreasonably and unfairly for any reason or no reason at all, with notable exceptions for certain claims if the reason for dismissal is discrimination, whistleblowing and health and safety. The Government’s rationale behind the proposals is to encourage employers to recruit staff but the proposals have been met with significant criticism from both lawyers and businesses. The argument that allowing employers a longer period to dismiss their employees unreasonably and unfairly without sanction will increase recruitment is a little tenuous and certainly sends the wrong message to would-be new recruits; i.e. that they can be treated unreasonably and unfairly for longer. The length of qualifying service for unfair dismissal rights has changed from time to time over the years. It began at six months in the 1970s, increased to one year and then two years during the 1980s and was then reduced to one year in 1999. It has been generally felt that one year struck the right balance between allowing an employer sufficient time to assess an employee’s suitability and recognising an employee’s right to fair treatment. More importantly, it is doubtful that increasing qualifying service to two years would result in a reduction in claims brought. At present, those employees who feel that they have been unfairly dismissed (within the first year of service) typically tend to bring alternative claims which do not require a qualifying period. These employees bring a disproportionate number of Employment Tribunal claims for discrimination and whistleblowing, which can give rise to unlimited compensation awards, involve consideration of more complex issues at Tribunal hearing and generally result in greater time and expense for the employer and the Tribunal service. An increase in the unfair dismissal qualifying period to two years is likely simply to increase the number of these claims. It is important for employers to remember that, once employees qualify for unfair dismissal rights, the employees’ entitlement is only to be treated fairly and reasonably. As a matter of good industrial practice all employers should attempt to treat all of their employees fairly and reasonably irrespective of length of service. Employers need to apply their minds at an early stage to whether an employee is right for the business and right for the role and whether the employee is performing at an appropriate level. If employers delay making these assessments because there is a two year period to do so, then businesses will potentially suffer from having ineffective employees in the workplace for a longer period and employees will suffer by not being informed of areas for improvement and potentially being dismissed after having committed a significant time period to a particular business. Irrespective of whether the Government’s proposals are brought into effect employers should always seek to: • Utilise probationary periods incorporating shorter notice periods. • Implement interim reviews and end of probation reviews. • Ensure that feedback is obtained from managers and/or colleagues of new employees for the purpose of these reviews. • Bring any performance concerns to the employee’s attention in good time to allow the employee opportunity to improve. • Follow a fair and reasonable disciplinary/dismissal procedure if an employee fails to improve and is to be dismissed. • Always seek legal advice.
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