Is increasing to two years the "qualifying employment period" before which claims for unfair dismissal can be brought, and introducing an upfront claimant's fee for employment tribunals, either justified or likely to be effective in reducing workplace conflict?

I sense that introducing a claimant fee will almost certainly reduce the number of unfounded claims, I am less convinced about the 2 year clause as wearing the employee advocacy hat I think it may encourage less scrupulous organisations to behave unethically with regards to employee rights and forego good governance practice around performance and discipline management.      

An upfront fee would help to deter the casual or "try on" Claimant but the cost (particularly in a dismissal case) could also leave the most vulnerable without a remedy if they are not able to resolve a dispute internally.   A more robust approach by the Tribunals to rejecting misconceived claims (e.g. on time issues) and requiring deposit might be a less blunt and more effective response.     Increasing the qualifying period is likely to fuel workplace disputes, rather than reduce them – as poorly treated employees look to shoehorn their circumstances into a Whistle blowing or discrimination claim to get around the extended qualifying period.      

I think that the Government proposal to increase the qualifying employment period to two years before which an unfair dismissal claim can be brought; is justified given the rise in employment tribunal applications.  It can also be seen from several viewpoints.  From an employer perspective this gives an opportunity to seek to resolve any issues or conflicts and will also deter serial or malicious complainants from bringing claims that are time consuming and costly to defend, regardless of the facts of the case on either side.  An upfront claimant’s fee should also support this view.  On the other hand an employee wishing to bring a claim may not be able to afford the fee and therefore valid claims may not be brought at all; or employers may use the two year qualifying period to increase the number of employees dismissed outside established processes. It will be interesting to see whether a balance can be achieved in practice.      

I am confident that the decision to increase the qualifying period and introduction an upfront claimant’s fee for employment tribunals is justified. With tribunals increasing by 50% in 2010 alone, these reforms are necessary to both protect employers against unreasonable claims for compensation and to help employees utilise the more effective internal processes for mediating problems before the employment relation is broken.With an average cost to employers of successfully defending a vicarious claim now above £5k it is time to return to a more balanced interpretation of the rights of both employees and employers and stop the tribunal system being nothing more than a gravy train for lawyers. Sadly what began as a positive tool to ensure rogue firms treated their staff fairly has become our equivalent of car accident whiplash claims and turned a very positive piece of legislation into confused yet lucrative method of some obtaining unearned benefits.      

Given the current economic situation we need to identify ways to encourage job creation. Increasing the qualifying employment period from one to two years may encourage small businesses to start hiring and so promote jobs growth. However, a real concern in doing this is that it will just lead to a greater number of discrimination claims by those dismissed within two years. ET cases increased by more than 50% last year and so any measure intended to deter the number of weak or vexatious claims is a good thing for business. An upfront claimant fee may help achieve this depending on the quantum, although increasingly household insurance policies include legal fees and so this may not be the deterrent it is intended to be. A more effective alternative might be to award costs against the losing party as this would help focus the mind as to whether the dispute was genuine or not.      

On balance, I  welcome this change as a positive development. I do not see its value so much in terms of its efficacy in the reduction of workplace conflict but more as a  factor in encouraging an employee relations culture where meaningful efforts are put into timely resolution of conflicts  as they occur in the workplace rather than a dependence on the tribunal system.   Sustainable business success depends on good employee relations, and I believe the majority of employers operate with this in mind.  I do not believe that the current number of tribunals is reflective of poor employee relations within this country.    I feel that the  upfront claimant fee  is appropriate and would go some way to ensure that claimants make their decision to go to tribunal based on careful consideration.   It could be argued that the current system lessens the emphasis of good employee relations  since it can be all too tempting and easy for claimants to  go straight to tribunal, perhaps motivated more by potential compensation than by conflict resolution. Similarly, I believe that many organisations facing this scenario are taking the “safe” option to settle via compensation rather than put their emphasis on dealing with the issue at hand.With regard to the 2 year qualifying period this would be a positive move as it would enable sufficient time for probationary periods,  inductions and mentorship to be fully completed and embedded one year is just not sufficient as most probationary periods are at least 6 months.