Rise of the Unfair Dimissal Qualifying Period

On 6 April 2012 the qualifying period for unfair dismissal claims rises from one to two years. The change will only affect new employees whose employment starts on or after April 6 2012. Those employees already in employment will retain the current qualifying period of one year. The change will not affect automatic unfair dismissal claims.

The new timeframe to terminate employment of an employee, if they are not performing to standards, will be one year and 51 weeks.  For employees commencing employment before 6 April 2012 it remains before the 51 week mark.  This is because an employee is entitled to include their one weeks’ statutory notice period in their length of service, to obtain the requisite period of service to entitle them to bring an unfair dismissal claim.  However if an employment contract specifies longer notice than the statutory then termination should be considered many weeks, or months, beforehand.  For example if an employee employed after 6 April has one month’s notice specified in the contract, dismissal should be considered at the 22.5 month stage (or 10.5 months stage for those employed before 6 April). However, in my opinion an employer should not wait until the qualifying period is looming to terminate a badly performing new employee. 

Employers need to use probationary periods effectively to monitor and test new employees picking up quickly on any issues of poor performance providing an opportunity to improve.  Furthermore employers should diarise the cut-off points for continuous service to ensure employees do not attain the requisite qualifying period.  A fair procedure should be adopted when terminating employment including maintaining the paper trail.  Furthermore employers should be vigilant with how they manage employees to avoid possible discrimination as there is no qualifying period to bring an employment tribunal claim for that. 

The introduction of the higher qualifying period is part of the government’s drive to promote employment and to give employers the chance to try out new recruits without fear of unfair dismissal claim.  Time will tell whether this employment reform will assist businesses and boost economic recovery.