Unfair Dismissal - doubly unfair?

The Government is expected to commence a consultation later this week to consider a range of employment-based reforms with a view to stabilising and boosting the economy, whilst at the same time lessening the burden on an already stretched Employment Tribunal system.

One of these is the possibility of increasing to two years from one, the amount of time for which an employee must be employed before being able to bring an unfair dismissal claim in the Employment Tribunal.

This would be good news for employers, providing them with an extra year within which to dismiss, without having a fair reason and/or following a fair procedure.

It would not, however, prevent employees bringing other claims such as discrimination, whistle blowing, health and safety, maternity or trade union related claims for which there is no minimum length of service required. In fact, there is an argument to say that such claims will increase if the two year proposal is implemented, as employees who are unable to bring a claim for unfair dismissal may be inclined to clutch at straws and consider issuing other claims (even if they are very weak) just so that they can ‘have their day in court’.

Furthermore, discrimination claims tend to be more complicated (and thus more expensive to defend) than standard unfair dismissal claims – the situation would therefore not necessarily be perfect for employers!

Another possibility that is being considered is the requirement for anybody wishing to bring a claim to the Employment Tribunal to pay a fee (returnable if they win) to do so. The claims service is currently free, however it would be music to employers’ ears if claimants were made to ‘put their money where their mouth is’. Introducing a fee would no doubt reduce the costs faced by employers forced to defend themselves against bogus claims or those cases with little chance of success.

However, the introduction of a fee could deter those claimants with genuine claims. Many of those who make applications to the Employment Tribunal are out of work and there is an obvious concern that claimants will be unable to pay a fee if it is set too high.

There will no doubt be further healthy debate on this issue – the proposals have already faced strong resistance from employees and Trade Unions. It is important to emphasise that no final decision has been made yet - watch this space!

For more employment law advice regarding unfair dismissal or to comment on this article please email Melanie Morton employment law specialist by clicking here.