UK: Two-Year Qualifying Period For Unfair Dismissal In UK Only For New Joiners

Last Updated: 10 February 2012
Article by Charles Wynn-Evans and Kate Astbury

The Government plans on 6 April 2012 to increase the qualifying period of service required to have been completed for an employee to be able to claim unfair dismissal from one to two years in order to reduce the burden on business of unfair dismissal claims. It is understood that the Department for Business, Innovation and Skills (BIS) has now confirmed that, subject to Parliamentary approval, the new two year qualifying period for unfair dismissal will not be retrospective — it will only apply to employees whose employment begins on or after 6 April 2012 and those who are already employed before that date will retain the current one year qualifying period. This DechertOnPoint explores the potential impact these developments may have upon employers.

Policy Background

In response to an unattractive economic backdrop and rising unemployment, in its November 2011 press release BIS took the view that the move to a two year qualifying period will encourage growth and give businesses, especially small employers, confidence to hire more staff. It also estimated that the change will save business approximately Ł5.5m a year, and that this, combined with other proposals in the consultation, should see the number of unfair dismissal claims drop by up to around 2,000 a year. What it had not done, until recently, was to confirm that the regulations that will implement the change will only apply to employees whose employment begins on or after 6 April 2012.

Practical Consequences

Whilst the Government's response to the consultation on this proposal indicated that individual businesses agreed that extending the qualifying period would make them more confident about hiring new workers, it remains to be seen whether this will be the case. Also, it has to be said that it is not clear that this change to the eligibility threshold for unfair dismissal will make a significant difference to employers' overall exposure to potential employment liabilities. Many employers already make use of probationary periods and will generally have terminated the employment of those individuals who prove not to be suitable well before the current one year qualifying period has expired in any event. For such employers, having the extra year to dismiss may not make a great difference to their business. If employers end up being tempted only to address poor performance towards the end of the qualifying period, the risk is increased of other employment claims arising in the meantime.

One concern which has been expressed about the potential consequences of the increased qualifying period is that individuals who, but for the increased qualifying period, would have been able to claim unfair dismissal, may be more likely try to bring alternative claims, such as whistleblowing or unlawful discrimination, which do not have qualification periods (or indeed compensation caps). Some commentators have expressed the concern that employers will face greater levels of unfounded discrimination and whistleblowing complaints brought by those unable to claim unfair dismissal due to short service. The Government is, however, unconvinced that there will be widespread substitution of current unfair dismissal claims into other jurisdictions and claims that there is little evidence that, for example, where there are grounds for a discrimination claim, individuals are currently choosing to pursue an unfair dismissal claim instead.

Potential Challenge

While not directly impacting upon employers at this stage, there is also the possibility of a potential legal challenge to the two year threshold on the basis of indirect discrimination against certain groups.

Between 1985 and 1999, the qualifying period for unfair dismissal was also two years and a legal challenge was mounted on the basis that the two year limit was indirectly discriminatory on the grounds of sex, because women tended to have shorter service periods than men (R v Secretary of State ex parte Seymour-Smith and Perez (No.2) [2000] IRLR 263). The challenge ultimately failed as the House of Lords held that, while the limit did result in an unequal impact upon men and women, it was objectively justified.

The Government's own impact assessment of the proposal to increase the unfair dismissal eligibility threshold indicates that there may be some mileage in the argument that the increase in the qualifying period will have a disparate impact on young workers and, to a lesser extent, non-whites and women. It is therefore conceivable that this increase in the qualifying service requirement could also be subject to a similar challenge.


It would be ironic if a change to the law intended to improve recruitment were to cause employers to pause their engagement of new staff until April in order to avoid their being entitled to protection from unfair dismissal after one year under the current regime. The fact that new joiners will have to wait longer to acquire unfair dismissal claims does, however, increase the risk of staff resorting to bringing more whistleblowing and discrimination complaints. The proposed change does therefore reinforce the need for employers to consider whether they have adequate training and systems in place to minimise their exposure to such claims.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.