Government plans to make unfair dismissal claims a day one employee right could drive “a potential explosion in employment tribunal claims”, according to an employment lawyer.
Speaking on the Benefits Unboxed podcast from Benefits Expert, Matt Jenkin, partner, employment, at law firm Herrington Carmichael, said government plans to remove the two year qualifying period for employees to be able to bring an unfair dismissal claim could herald a large rise in tribunal claims.
“Inevitably, it’ll lead to an increase in tribunal claims, not least as employers adjust to it,” Jenkin said.
“Many of my clients, when I speak to them, the first or second question is usually around how long has someone been there? I suspect with those issues disappearing we are going to see a potential explosion in employment tribunal claims.”
He said he expected to see claims soar in the first year to 18 months after the changes, as employers adjust to this new regime.
This employment law change, and many others, are outlined in Labour’s pre-election mini manifesto titled ‘Plan to make work pay: delivering a new deal for working people’.
Employment law impacts
In the second episode of the Benefits Unboxed podcast, special guest Jenkin explained the potential pay and employment law impacts of this far reaching mini manifesto in conversation with podcast co-hosts Claire Churchard, editor of Benefits Expert, Carole Goldsmith, HR director at the Royal Horticultural Society (RHS), and Steve Herbert, industry veteran and reward and benefits consultant.
For employers concerned about the right to bring an unfair dismissal claim becoming a day one right, Jenkin said: “Employers are still going to have the right to use probationary periods, so [the government is] going to have to introduce some legislation to design that.
“But effectively, as I understand it, employers can still use fair and transparent probationary periods to end employment on performance grounds.”
Cautious employment market
However, he said the move to make unfair dismissal claims a day one right would still make employers more cautious about hiring.
“Employers will be more concerned about potential unfair dismissal claims than they are now. [At the moment] they know that there’s an informal, almost statutory, probationary period of two years,” he explained.
He said employers with concerns about an employee’s performance would also be less inclined to give new hires more time to improve, a practice that they are more amenable to with the two year qualifying period.
“I think it’ll actually lead to a more cautious employment market,” he said.
Tribunals already busy
RHS’s Goldsmith said employers who have the right processes in place “shouldn’t necessarily be overly concerned”. But she added: “Matt is right that there will be more claims coming through, which is going to be interesting in itself when you think how rammed the employment tribunals are.”
Speaking more broadly about the employment law changes pledged in the mini manifesto, Jenkin said that he was struck by the ambition of the now government’s programme.
“We’re not talking about one or two minor employment law changes here. We’re talking about wholesale changes to employment law in the UK.”
Ambitious reforms
He continued: “I’ve been practising for far too many years, and I can’t remember a kind of tranche of employment law reform like this. [It is] also ambitious in terms of timescales, [given] their 100 day plan for introducing some of this.
“Whether that’s positive for employers or not, I think we’ll wait and see”.
- For more on the impact of employment law changes, plans for greater equal pay and pay gap reporting and potential timescales for change, you can listen to the full podcast here. You can also read our article on ethnicity and disability pay gap reporting here.
