The government is considering increasing the qualifying period for unfair dismissal from 1 year to 2 years. The timetable for a decision has not yet been announced, and it is likely there will be a consultation period first.
If the change occurs, it is good news for business, but bad news for employees. In theory, employers would have an extra year to dismiss unfairly but they could still face allegations of discrimination (or unfair dismissal claims where no qualifying period is required, ie whistleblowing and certain health & safety, maternity and trade union related dismissals). Since such claims tend to be more expensive to defend than ‘ordinary’ unfair dismissal claims, it is unclear whether employers will find this proposal an entirely favourable change.
In June 1999, the House of Lords held by a 3:2 majority in R v Secretary of State for Employment, ex p Seymour-Smith that the two year qualifying period for unfair dismissal was potentially discriminatory against women, as women were statistically less likely than men to accrue two years’ employment. However, they also held that the Secretary of State for Employment could justify the social policy behind the two-year threshold, namely opening opportunities in the labour market, which meant the two year qualifying period was permitted to stand. It is likely a similar result would occur today if the increase to two years was challenged.