Changes to Unfair Dismissal Rights
In November 2011 the Government announced its intention to increase the qualifying period required for employees to make unfair dismissal claims at employment tribunals from one to two years’ service. This change will take effect from 6 April 2012 however it is important to note that this will only apply to employees whose start date is on or after 6 April 2012. Businesses will therefore need to be vigilant when considering dismissals for employees who started prior to that date as they will still be able to bring a claim after only one year’s service.
The purpose of the change is to allow businesses more time to resolve employment difficulties and to hopefully reduce the number of unfair dismissal claims placed at tribunal. However it is important to be aware that employees may still raise other claims which are not dependent on the two years’ service requirement.
It is important to note that the change to the qualifying period will not remove the risk of discrimination claims as no qualifying periods apply to these claims. In additional there are a number of exceptions to the qualifying period which will remain.
It is anticipated that the increase in the service requirement for most unfair dismissal claims to two years may result in an increase in employees seeking to make alternative claims as described above. As such it will be important for businesses to seek advice in any circumstances where they are considering the dismissal of an employee to ensure that the risk of any claim being made is minimised. Please contact the Empire Advice Line team if you have any queries about these changes, and especially if you are looking to terminate an employee’s contract of employment.
Can Employees Working Abroad Claim Unfair Dismissal?
Ravat v Halliburton Manufacturing and Services Ltd [2012] UK Supreme Court
In the light of Lawson v Serco [2006], the Supreme Court considered whether an employment tribunal had jurisdiction to hear a complaint of unfair dismissal in relation to a British citizen, living in England, who worked for a British-registered company in Libya on a month-on, month-off basis.
The Court held, dismissing the employer’s appeal against the decision that an employment tribunal did have jurisdiction to hear an unfair dismissal complaint. The Employment Rights Act 1996, ss 94(1) (right not to be unfairly dismissed), 230(1) (definition of “employee”) did not contain any geographical limitation, although some limitation must be implied. Distinguishing Lawson, the question of law was whether s 94(1) applied to this particular employment. It was not for the courts to lay down a series of fixed rules where Parliament had decided not to do so. Their role was to give effect to what Parliament may reasonably be taken to have intended by identifying and applying the relevant principles. The question of fact was whether the connection between the circumstances of the employment and Great Britain and with British employment law was sufficiently strong to enable it to be said that it was be appropriate for the employee to have a claim for unfair dismissal in Great Britain.
The Ravat decision can certainly be viewed as an employee-friendly one – the majority of overseas worker cases will now most likely be caught by s.94 if a long enough list of factors can be produced – but it is open to question whether this is quite what Parliament had intended. Instead, the tribunals are left with a lengthy fact-finding exercise combined with a distinct lack of clarity as to what the relevant facts they should be finding are. From now on, when establishing the scope of s.94(1), anything, it seems, goes.
Has or will your business be affected by these issues?
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