By Ben Stepney, Solicitor in Employment.
In its recent response to the ‘Resolving Workplace Disputes’ consultation paper, the Government has announced what it describes as “the most radical reform to the employment law system for decades”.
A range of proposals have been offered up; too many for us to address in a single article. So for now, we will concentrate on plans to increase the qualifying period for unfair dismissal claims.
The Government has already confirmed that, with effect from April 2012, it intends to increase the qualifying period from one to two years’ continuous service. This will take us back to a position that last existed in 1999. The aim, so says the Government, is to make a positive impact on business confidence. Current estimates predict a reduction in the number of unfair dismissal claims of between 1,600 and 2,100 per year.
No doubt employers will greet this change with a sense of satisfaction. But what are disgruntled employees dismissed with less than two years’ service to do? Answer: bring a discrimination claim, for which there is no qualifying period. So the unintended consequence of the expected drop in unfair dismissal claims could be a corresponding increase in discrimination claims.
If employees are desperately seeking to pursue discrimination claims, when previously they would not have done so, it might be presumed that a large number of these claims will be relatively weak. But discrimination claims can be technically difficult to defend. This is because of the way in which the burden of proof operates. If the employee can (i) point to a comparator of a different race, sex etc and (ii) show an apparent difference in treatment between the employee and the comparator, the burden of proof switches to the employer to show that its treatment of the employee was in no way whatsoever related to the ‘protected characteristic’ in question. Proving a negative can be a challenge at the best of times. So employers may have to work very hard to clear their names.
Is this change in the law potentially unlawful?
We have seen instances over recent years of people challenging the legality of the law itself, particularly where there is an argument for saying that our domestic laws contradict the terms of European legislation. Presuming that the qualifying period increases as planned, issues could arise in this regard.
It may be arguable that the change in the law will result in indirect discrimination against people with certain ‘protected characteristics’. For example, women or younger workers, statistically, may be more likely to have shorter periods of service than men or older workers. As a result, fewer women and young workers would qualify for the protection that unfair dismissal laws provide. In order to fend off such a claim, the Government would have to show that the increased qualifying period is ‘objectively justified’. The consultation response believes that this change will improve business confidence in hiring people and thereby boost growth. The historical justification for a qualifying period has been to give employers time to decide whether an employee is truly suitable for the role to which they have been recruited. Do employers really need a period of as long as two years in which to make this decision? In most cases, one might argue that they do not.
Regulations to implement this change in the law will be brought forward shortly. They will include transitional provisions, which will need to address the position of employees who will have between one and two years’ service when the regulations come into force. An employee who commenced employment in November 2010 will have qualified for unfair dismissal protection in November 2011. Will such employees then lose that protection in April 2012, only to regain it when they reach two years’ service in November 2012? As ever, the devil will be in the detail.
It will be interesting to see how this situation develops.
For more information, please contact Ben Stepney on 01892 701359.