UK: Changes To Unfair Dismissal Legislation – An Employers Benefit?

Last Updated: 17 May 2012
Article by Andrew Browning

The Chancellor, George Osborne, announced in October 2011 that in an effort to reduce the number of employment tribunal claims being made and "red tape" for employers, the qualifying period that an employee must work for their employer before being able to make a claim of unfair dismissal would be increased from one year to two years, and that there would be a requirement for the Claimant to pay a fee when making a claim to the employment tribunal. Trade unions cried foul over these changes; however, how beneficial will they be to employers?

Unfair dismissal

The increase of the qualifying period from one year to two years before an employee can make a claim of unfair dismissal is likely to be welcomed by a majority of employers. In the 2011 Chamber of Commerce Workforce Survey, 54% of the businesses surveyed said that they found the regulations relating to dismissal of employees either extremely burdensome (30%) or fairly burdensome (24%).

By increasing the qualifying period businesses will have a longer period within which they can dismiss an employee without risking a claim of unfair dismissal.

This clearly gives more control back to the employer; however, would this reduce the number of unfair dismissal claims that will be made?

Unfortunately, the Employment Tribunal and Employment Appeal Tribunal (EAT) statistics supplied by the Ministry of Justice for 2010-2011 do not provide a breakdown that shows the length of service of those who make claims of unfair dismissal. It could therefore be the case that increasing the qualifying period will not actually have a significant impact on the number of claims of unfair dismissal, as there would be plenty of employees with over 2 years service who could still claim.

The benefits of this change could be hampered by the fact that there is no qualifying period for employees to make claims of discrimination.

Former employees regularly make claims that their dismissal was an act of discrimination (on the grounds of race, disability, gender etc). The lack of a qualifying period for discrimination claims means that such claims can still be made. The government is also unable to introduce any such qualifying period for discrimination claims as these are derived from European Directives.

There has actually already been a drop in the number of unfair dismissal claims made to the Employment Tribunal from 57,400 in 2009/2010 to 47,900 in 2010/2011. These statistics could indicate that increasingly employers are dismissing people in a correct manner. Arguably the best way to avoid a claim of unfair dismissal is for an employer to have clear dismissal procedures in place, and to follow these when considering whether or not to dismiss an employee rather than relying on the changes to unfair dismissal legislation.

Employment tribunal fees

It is understood, although not confirmed, that the fee for lodging an employment tribunal claim will be in the region of £250 with a further £1,000 fee that will also be payable by the claimant when the claim is listed for a hearing. These fees will be repaid if the claimant is successful. It is also thought that claimant's who have no income will not have to pay the fees.

It is difficult to dispute that a fee will make potential litigants think carefully before making a claim to the tribunal. Further, the £1,000 listing fee may encourage early settlement of a claim before the matter is listed for hearing. However, the exemption from paying fees by claimants who have no income may render the deterrent nature of the fee impotent. It is not beyond the bounds of credibility that someone who is making a claim of unfair dismissal will not have a job at the time that they make a claim, and so will be exempt from paying a fee meaning that tribunal claims will still be able to be lodged with relative ease by many claimants.

It has been argued that tribunal fees will prevent vexatious litigants. The problem with this argument is that vexatious litigants by their very nature can be particularly determined to "see their former employer in court" no matter what the cost. While the potential tribunal fees may be a significant expense, often these types of litigants will find a way to pay as their sole intention is to make life as difficult as possible for their former employer.

It is likely that the effectiveness of the fees as a deterrent will be dependant on the level of the fees and to whom the exemption on paying fees will apply. Tribunal fees will in all likelihood reduce the number of claims being made but perhaps by not as many as the government hopes.


The increase in the qualifying period to claim unfair dismissal and the introduction of tribunal fees is probably going to reduce the number of claims made to the Employment tribunal. It is however open to debate as to how significant this reduction will be.

These changes also do not deal with the expense that is incurred by the employer in terms of legal fees and loss of management and staff time when a claim is made.

It is questionable whether these changes will significantly reduce the "red tape" that employers face in terms of employing people.

In the 2011 Chamber of Commerce Workforce Survey 53% of the employers surveyed said that they found Health and Safety regulations extremely burdensome (24%) or fairly burdensome (29%). In the same survey 53% of employers stated that they felt the new provisions giving fathers additional paternity leave was detrimental to the business and 32% felt the same about the right to request flexible working.

Employers have also regularly complained that the provisions relating to maternity leave are especially onerous.

It is unlikely that these provisions are going to be removed at any time in the near future and so changes to unfair dismissal legislation and the introduction of tribunal fees are probably going to be viewed as only a small drop in the ocean of employment legislation.

Thomas Eggar LLP is a limited liability partnership registered in England and Wales under registered number OC326278 whose registered office is at The Corn Exchange, Baffin's Lane, Chichester, West Sussex, PO19 1GE (VAT number 991259583). The word 'partner' refers to a member of the LLP, or an employee or consultant with equivalent standing and qualifications. A list of the members of the LLP is displayed at the above address, together with a list of those non-members who are designated as partners. Regulated by the Solicitors Regulation Authority. Lexcel and Investors in People accredited.

Thomas Eggar LLP is not authorised by the Financial Services Authority. However, we are included on the register maintained by the Financial Services Authority so that we can carry on insurance mediation activity which is broadly the advising on, selling and administering of insurance contracts. This part of our business, including arrangements for complaints and redress if something goes wrong, is regulated by the Solicitors Regulation Authority. The register can be accessed via the Financial Services Authority website. We can also provide certain further limited investment services to clients if those services are incidental to the professional services we have been engaged to provide as solicitors.

Thesis Asset Management plc, our associated financial services company, provides a comprehensive range of investment services and advice. Thesis is owned by members of Thomas Eggar LLP but is independent of and separate to it. No lawyer connected with Thomas Eggar LLP provides services through Thesis as a practicing lawyer regulated by the Solicitors Regulation Authority. Thesis is authorised and regulated by the Financial Services Authority. Thesis has its own framework of investor protection and professional indemnity cover but Thesis clients do not enjoy the statutory protection of solicitors' clients.

The contents of this article are intended as guidelines for clients and other readers. It is not a substitute for considered advice on specific issues. Consequently, we cannot accept any responsibility for this information or for any errors or omissions.

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.