One of the proposals in the Employment Rights bill is for the current requirement for 2 years of continuous service to claim unfair dismissal to be removed and to become a day 1 right. This has worried many businesses, but there are reasons why this change may not be something that needs to be a serious cause for concern. In some ways, this may even be seen as a positive, particularly in the recruitment sector.
Unfair dismissal claims: nothing to fear
- The change is only to the right to claim. If a dismissal is ‘fair’ then there is no validity to that claim.
- The law already provides that a dismissal will be fair if the employer had a potentially fair reason to dismiss and acted reasonably in dismissing for that reason. There are a wide range of circumstances where dismissals are considered to be fair. These include misconduct of the employee, capability and performance, redundancy, illegality or even some other substantial reason. If the dismissal was for one of these reasons, whether the dismissal is fair or not often comes down to the processes followed. For example, following an appropriate disciplinary procedure, having a fair selection criterion for redundancy, or whether the employee has been given a chance to improve.
- Whilst the changes will mean that businesses must follow a fair process when dismissing all employees, irrespective of the length of service (subject to exceptions that may be introduced for probationary periods), these do not have to be lengthy and cumbersome. Sometimes following the process can achieve a different outcome, such as an improved employee, or avoid a more costly discrimination claim.
- Employees with less than 2 years of service can already file unfair dismissal claims for various reasons. These could include pregnancy-related dismissals, dismissals for asserting trade union, health and safety, statutory rights or whistleblowing. Discrimination claims do not require any length of service. Relying on the fact that an employee has less than 2 years of service and dismissing without regard to any process can increase the risk of such claims, which may have been avoided had a process been followed.
- Earlier assessment and process might lead to a better and more efficient business. How often is minor misconduct such as persistent lateness, breaches of process, or just slightly below-par performance left to drift? The need for probationary review and due process might lead to issues being nipped in the bud, training needs or adjustments coming to the forefront sooner and overall, a more efficient workplace.
These could be positives for recruitment, and part of the rationale for the change is that employees feel more comfortable in moving jobs. The reality is that if there is a good reason to dismiss and proper processes have been followed, the risk is arguably no greater than it is now.
For more information, or expert advice on any recruitment or employment law matter, please contact us on 01273 236 236 or email us at info@lawspeed.com.or email us at info@lawspeed.com.
