1. 2012 changes unfair dismissal rules and Employment Tribunal costs
The Coalition has announced that as from 1 April 2012 employees must have more than two
years’ continuous service to bring a claim for unfair dismissal. The Government has not
stated what, if any, transitionary provisions there will be. So employees who are protected
against unfair dismissal now, in that they have one year’s service, may find if they do not
have two years’ service by April 2012 that they loose their protection. One of the reasons for
changing the unfair dismissal service requirement from one to two years was because a two
year period was found to be indirectly discriminatory (on the grounds of sex as fewer women
than men worked for more than two years in the same job). So this change could again be
challenged on the grounds of discrimination.
To avoid such a challenge the Government will have to show this is a proportionate response
to achieving a legitimate aim (i.e. creating a more favourable business environment). Will
there be such a challenge or will this lead to an influx of discrimination claims (for which
there is no prescribed qualifying period) as employees who are no longer protected against
unfair dismissal seek compensation via a different route? Watch this space.
Our prediction? – expect a big rise in age discrimination claims.
The Coalition has also announced that fees will be introduced for Employment Tribunal
claims – a new and bold step. Employment Tribunals have historically been free to use
(unlike the main civil Courts which have Court fees). Fees will be introduced from April
2013 and although not yet determined as expected to be:
• Fee for Claimant on issuing a claim – £250.
• Fee for Claimant when hearing is listed – £1,000 (and higher if the claim is over £30,000).
These fees will be refunded to the Claimant if they win and forfeited if they lose, although
Claimants on very low incomes are expected to be exempt from the fees. The ethos behind
this change is to deter vexatious litigants who may not be prepared to put their hands in their
pockets to pursue unmeritorious claims.
However, it may backfire in that most claims settle before trial and the employer wishing to
reach a settlement may just be facing another £1,250 on the settlement bill, as the Claimant
will claim he will get this back when he wins.
Swings and roundabouts; that is the merry go round of employment law.