XpertHR's head of content Jo Stubbs and senior employment law editor Clio
Springer discuss the April 2012 increase in the unfair dismissal qualifying
period.
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The questions in full:
The qualifying period to claim
unfair dismissal has been one year since Tony Blair’s Labour Government reduced
it to that in 1999. How is it changing?
It's going back up again - increasing
from one year to two years from 6 April 2012.
Is that retrospective? For
example, will someone who started work in January of this year now have to gain
two years’ continuous service before being able to claim unfair
dismissal?
No, it applies only to those employees
whose employment begins on or after 6 April 2012. The one year’s continuous
service requirement will continue to apply to anyone whose period of continuous
service started on or before 5 April of this year.
So where the increase does apply,
this doesn't mean the employer is going to be able to dismiss with impunity
within the first two years does it? There isn't always a need for a period
of qualifying service to bring an unfair dismissal claim is there?
No, there are some automatically
unfair reasons for dismissal. Once it has been established that a dismissal
was for one of these reasons, the tribunal must find that it was unfair. In
general, where the dismissal is for one of the automatically unfair reasons, the
service qualification period does not apply, although there are a few
exceptions, such as where the reason for the dismissal is a TUPE
transfer.
Can you give some examples of when
no qualifying period will apply.
There are lots of reasons, including
where the dismissal is related to pregnancy, childbirth or maternity, or
adoption or paternity leave, or where the dismissal is for a health and safety
reason, or related to trade union membership or activities. Other reasons
are where the dismissal was for asserting a statutory right, or because the
employee made a public interest disclosure (or blew the whistle as it is
commonly called). We set out the full list in the XpertHR quick reference section.
And of course employees can also
bring discrimination claims on one of the protected grounds such as race, age or
sex from day one of employment.
That’s right. Undoubtedly one
impact of the increase in the qualifying period for a general unfair dismissal
claim is that employees with less than two years’ service are going to attempt
to slot the facts of their case into one of the automatically unfair reasons or
a discrimination claim.
Does the legislation changing the
unfair dismissal qualifying period bring in any other changes?
Yes, the related change is that
employees will need two years’ service before they have the right to receive a
written statement of reasons for dismissal on request. Again this won’t
apply where the period of continuous employment began before 6 April 2012, when
only one year’s service will be required. And of course there’s no service
requirement for this where the employee was dismissed while pregnant or on
maternity or adoption leave. In addition, in these circumstances the
employee is entitled to receive the statement without having to request
it. (See below for model written statements of reasons for dismissal.)
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XpertHR
employment law manual
Continuous employment Qualification
for many statutory employment rights, including the right to claim unfair
dismissal, is dependent on the employee having been continuously employed for a
specific period. The XpertHR employment law manual sets out how continuous
employment is calculated.
Unfair dismissal: rights on
termination If a claim for unfair dismissal is brought, the employer has
to establish that the reason for the dismissal is one of the designated reasons
set out in the statute and, if it overcomes that hurdle, the employment tribunal
will go on to consider whether or not the dismissal was fair in all the
circumstances.
Back to top
XpertHR
policies and documents
Model written statement of the reasons for
dismissal Use this model letter when a dismissed employee makes a
request to be given a written statement of the reasons for his or her
dismissal.
Model written statement of the reasons for
an employee's dismissal where the employee is pregnant, or on maternity or
adoption leave Use this model letter to provide an employee who is
dismissed while pregnant or on maternity or adoption leave with a written
statement of the reason for his or her dismissal.
Back to
top
More resources on this topic from XpertHR
The questions in full
The qualifying period to claim
unfair dismissal has been one year since Tony Blair’s Labour Government reduced
it to that in 1999. How is it changing?
It's going back up again - increasing
from one year to two years from 6 April 2012.
Is that retrospective? For
example, will someone who started work in January of this year now have to gain
two years’ continuous service before being able to claim unfair
dismissal?
No, it applies only to those employees
whose employment begins on or after 6 April 2012. The one year’s continuous
service requirement will continue to apply to anyone whose period of continuous
service started on or before 5 April of this year.
So where the increase does apply,
this doesn't mean the employer is going to be able to dismiss with impunity
within the first two years does it? There isn't always a need for a period
of qualifying service to bring an unfair dismissal claim is there?
No, there are some automatically
unfair reasons for dismissal. Once it has been established that a dismissal
was for one of these reasons, the tribunal must find that it was unfair. In
general, where the dismissal is for one of the automatically unfair reasons, the
service qualification period does not apply, although there are a few
exceptions, such as where the reason for the dismissal is a TUPE
transfer.
Can you give some examples of when
no qualifying period will apply.
There are lots of reasons, including
where the dismissal is related to pregnancy, childbirth or maternity, or
adoption or paternity leave, or where the dismissal is for a health and safety
reason, or related to trade union membership or activities. Other reasons
are where the dismissal was for asserting a statutory right, or because the
employee made a public interest disclosure (or blew the whistle as it is
commonly called).
And of course employees can also
bring discrimination claims on one of the protected grounds such as race, age or
sex from day one of employment.
That’s right. Undoubtedly one
impact of the increase in the qualifying period for a general unfair dismissal
claim is that employees with less than two years’ service are going to attempt
to slot the facts of their case into one of the automatically unfair reasons or
a discrimination claim.
Does the legislation changing the
unfair dismissal qualifying period bring in any other changes?
Yes, the related change is that
employees will need two years’ service before they have the right to receive a
written statement of reasons for dismissal on request. Again this won’t
apply where the period of continuous employment began before 6 April 2012, when
only one year’s service will be required. And of course there’s no service
requirement for this where the employee was dismissed while pregnant or on
maternity or adoption leave. In addition, in these circumstances the
employee is entitled to receive the statement without having to request
it. (See below for model written statements of reasons for dismissal.)
XpertHR
employment law manual
Continuous employment Qualification
for many statutory employment rights, including the right to claim unfair
dismissal, is dependent on the employee having been continuously employed for a
specific period. The XpertHR employment law manual sets out how continuous
employment is calculated.
Unfair dismissal: rights on
termination If a claim for unfair dismissal is brought, the employer has
to establish that the reason for the dismissal is one of the designated reasons
set out in the statute and, if it overcomes that hurdle, the employment tribunal
will go on to consider whether or not the dismissal was fair in all the
circumstances.
XpertHR
policies and documents
Model written statement of the reasons for
dismissal Use this model letter when a dismissed employee makes a
request to be given a written statement of the reasons for his or her
dismissal.
Model written statement of the reasons for
an employee's dismissal where the employee is pregnant, or on maternity or
adoption leave Use this model letter to provide an employee who is
dismissed while pregnant or on maternity or adoption leave with a written
statement of the reason for his or her dismissal. |