Last year there were over 200,000 claims brought before Employment Tribunals. In an attempt to reduce this figure, the Government has announced that employees will have to work longer before they can claim unfair dismissal and the introduction of fees for bringing a claim. Simon deMaid, Associate solicitor in the employment department at Howes Percival Solicitors takes a look at these changes and what they could mean in practice for employers.

From the 6th April 2012 an employee will need to have worked for their employer for 2 years before they can bring a claim for unfair dismissal to an Employment Tribunal. This returns the qualifying period of service to the level it was between 1985 and 1999. The current position is that employees can claim that their dismissal is unfair after 1 year's employment. The aim of this reform is to reduce the number of unfair dismissal complaints. It is also intended to give employers greater flexibility when terminating an employee's employment. However, Simon comments that employers still need to be aware that "many types of unfair dismissal claims do not need any period of service for an employee to bring a claim. For example, an employee who alleges that their dismissal is for raising a health and safety concern at work or for making a protected disclosure (whistle blowing). The change in law proposed will not affect these claims, which will continue to be able to be made regardless of length of service"

It is also important to remember that the increase in the qualifying period of service only affects an employee's right to bring an unfair dismissal claim. There are many other types of claim that do not need a minimum period of service, including discrimination claims. According to Simon "employers should be aware that many more employees are now protected under anti-discrimination legislation. Therefore an employee could claim discrimination if they consider that their dismissal is because of their sex, race, disability, religion or belief, sexual orientation or age." One unintended consequence of the increase in the qualifying period of service to bring an unfair dismissal claim is that employees with less than 2 years employment who are aggrieved at their dismissal may instead bring a discrimination claim. Accordingly although the number of unfair dismissal claims may go down, the number of discrimination claims may go up.

From 2013 the current proposal is that claimants will have to pay £250 when they lodge their claim at Tribunal and a further £1,000 when the case is listed for a hearing. In Simon's view "the introduction of fees at levels beyond that in the Small Claims Court could well deter many employees from bringing a claim and will hopefully reduce the number of vexatious litigants".

Only time will tell whether the number of Employment Tribunal claims drops by 2000 as claimed by the Government. In the meantime Simon's top tips for reducing the risk of facing an Employment Tribunal claim are:

  • Follow Company policies and procedures. In misconduct and poor performance cases always follow the ACAS Code of Practice on disciplinary and grievance procedures as a minimum, even when issuing a warning as reliance on an unfair warning to later dismiss an employee could mean that the dismissal is unfair.
  • Ensure that you regularly review performance of new starters and that you regularly appraise employees.
  • Treat employees consistently so as to avoid any suggestion of discrimination.
  • Consultation. This is key to good human resources practice and of particular relevance to redundancy. As a minimum a fair redundancy procedure will involve warning the employees they are at risk of redundancy, selecting employees in accordance with an objective selection criteria, consultation meetings with employees who have been provisionally selected for redundancy and looking for alternative employment for them. Redundancies of 20 or more employees within a 90 day period are covered by special rules and specialist legal advice is advised to avoid costly Employment Tribunal claims.
  • Keep up to date. Employment law changes frequently, For example, family friendly rights have changed considerably in recent years and many employers' policies risk being out of date. In particular, additional paternity leave which was introduced this April gives new fathers the right to take up to 26 weeks paternity leave.
  • Keep written records. If undertaking an investigation into a misconduct issue, ensure that notes are taken of meetings and witnesses interviewed give a written statement which is signed. In redundancy cases ensure that those staff scoring employees keep notes of the reasons why a particular score was given and whether any other documents (e.g. appraisals) were referred to.
  • Training. Make sure your managers are properly trained in dealing with human resources issues and have some basic knowledge of key aspects of employment law.