The draft Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012 has now been published and will come into effect on 6 April 2012.

At the moment, if an employee wants to bring a claim for unfair dismissal, ordinarily, he or she is required to have worked for their employer for at least one year. Without that qualifying service, their claim will be struck out.

For workers whose employment begins on or after 6 April 2012, the qualifying period needed to claim this right will be extended to two years.

For workers whose employment began before 6 April 2012, the qualifying period will remain one year.

At any time, roughly one in eight workers have more than a year but less than two years’ service.

When the Tribunal system was first established, the qualification period for unfair dismissal was six months. This was increased twice under the Conservative governments of the 1980s before being reduced to its present figure (12 months) in 1999, partly in response to a decision of the House of Lords in R v Secretary of State for Employment, ex p Seymour-Smith that a two year qualifying period indirectly discriminated against women who were less likely to have accrued lengthy service.

The justification for the new rules is blunt: simply, if fewer employees qualify for unfair dismissal rights, there will just be fewer claims.  

Supporters of a longer qualifying period argue that in the ten years since the qualifying period was reduced to one year (i.e. from 1999-2009) the number of Tribunal cases increased by 64%. More cases have come to the Tribunal, causing the taxpayer expense.

Against that it must be noted that in the preceding ten years (1989-1999) the number of Tribunal cases had grown by an even larger amount, 210 percent, suggesting that the processes driving the increasing use of litigation by workers go deeper than this tweaking of the rules.

The reason why there are now so many Tribunal claims is that litigation fills a space left by the partial decline of industrial bargaining, and also created by the lack of independence of workplace dispute resolution procedures, so that someone who has a genuine grievance about their work increasingly has no option but to claim. That need will continue, even after the qualification period has been extended.