The Government’s recent announcement that it will increase the qualifying period for the right not to be unfairly dismissed from one year to two years is one of its many eye-catching aims in the field of employment law.

Where to set the threshold for this important right has, historically, been a political hot potato, with Labour tending to favour a one year threshold whilst the Conservatives prefer two years. This time around, the coalition Government has said that it aims to stimulate business growth and recruitment by returning to a two year period. Will it make a difference? This will depend on whether a one year qualifying period is really that off-putting to employers, especially considering that discrimination rights require no qualifying period and even exist in relation to the recruitment process.

It is possible that a return to a two year qualifying period could be met by legal action. Last time around the two year period was challenged as being indirectly discriminatory to women owing to the often fragmented nature of their employment (Seymour-Smith). This time it is feasible that an attack on the threshold might be made by younger employees who could claim that, as they are more likely to be entering the employment market, this legislation places them at a disadvantage when compared with their older colleagues.

These are just some of the issues that have been raised so far – but there are others.

Much like the challenges that have been made to retirement ages and thresholds for pension scheme access, wherever the line is drawn will (potentially at least) be open to attack. So why have a qualifying period at all? Doesn’t the existence of a threshold create its own two-tier workforce?

It is possible that an exemption from unfair dismissal rights for small employers could stimulate growth in some quarters. Such an exemption would also be consistent with the Government’s approach in other areas but it does raise the question – how small should a small employer be.






Kelly Sayers, Partner and Head of Employment Services at law firm Prettys

As Head of Employment Services at Prettys, Kelly leads a highly experienced team advising on a full range of HR and employment related issues and helping clients through difficult and often complicated disputes.