Rodney Hylton-Potts Writes
The Unfair Dismissal Variation of Qualifying Period) Order 2012 came into force on 6 April 2012. It increased the minimum qualifying period of continuous employment necessary to claim unfair dismissal, and entitlement to written reasons for dismissal, from one to two years.
This means employers could have two classes of employees with differing rights to claim unfair dismissal. This is because these changes do not affect employees whose period of continuous employment began before 6 April 2012.
Employers need to be aware of this distinction and, in particular, consider if an employee may be able to claim the period of employment began before 6 April 2012, if:
- an employee transferred into the organisation with an existing period of continuous employment (e.g. under TUPE) or has other service which counts, such as from an associated employer;
- there is a gap in employment which breaks continuity and what the effect of this break is in terms of calculating continuous service; not all breaks of service break continuity;
- an employee performed services for the employer in another manner (e.g. purportedly as a consultant) but that this could be argued to be a period of continuous employment.
Further, some dismissal rights do not need a qualification period. For example, an employee dismissed for whistle-blowing, or asserting a statutory right (such as the right to take time off to care for dependants, pregnancy or maternity leave, trade union membership, reporting health and safety risks) may claim automatically unfair dismissal, without any need for a qualifying period as set out in the Employment Rights Act 1996.
Similarly, an employee who can establish that a dismissal was connected to unlawful discrimination will also be protected.