The Government has published draft legislation detailing the increase in the qualifying period for unfair dismissal from one year to two.

The changes mean that the qualifying period for unfair dismissal increases to two years for employees employed on or after 6 April 2012.

However, the change will not be retrospective, which means that employees who joined an employer prior to 6 April 2012 will still be subject to a one-year qualifying period.

The increase in the qualifying period was originally proposed by the Government in its public consultation on wider reforms on resolving workplace disputes.

The draft Regulations also increase the qualifying period that applies to the right to receive a written statement of reasons for dismissal, on request. The current one-year qualifying period (which applies in most cases) will increase to two years for employees who start work with their employer on or after 6 April 2012.

Impact on Tribunal Claims

The proposed change will undoubtedly have some impact on the number of unfair dismissal claims but the impact is unlikely to be dramatic. The overall impact on the total number of claims submitted will probably be very small.

More importantly, the changes may well have unintended consequences. Most probably they may see would-be claimants turning to anti-discrimination regulations as one basis for claims.

A disgruntled employee who lacks the requisite service to bring an unfair dismissal claim might well decide to bring a claim based on their 'day one' employment rights instead, such as a claim for discrimination on the grounds of race, sex, sexual orientation, religion or belief, age or disability, or a whistleblowing claim. Since discrimination and whistleblowing claims are more complex, more costly to defend and attract higher compensation on average, this could well undermine the Government's objective of encouraging employers to recruit.

Age discrimination?

Although the two-year qualifying period may be interpreted as indirectly discriminatory against women and young people, who tend to be in post for shorter periods than adult males, case law on this is not clear.

In 1999/2000, when the qualifying period was two years, the Seymour-Smith case went before the House of Lords and European Court of Justice. They were asked to judge whether or not that period was indirectly discriminatory against women.

Whilst the qualifying period was found to be indirectly discriminatory, as more women were adversely impacted by it than men, it was held to be objectively justifiable on social policy grounds. Although that judgment was specific to the time in which the case took place, one of the reasons cited to justify the discrimination was a UK recession; hence it is thought that a similar justification would be cited. However, the impact on young people is a new and potentially fruitful ground to challenge the two-year qualifying period, under the age discrimination laws.