Unfair dismissal and the 23-month workers

A case was referred in March 1997 to the European Court of Justice, which may challenge the UK's two-year qualifying period for employment protection rights, especially relating to unfair dismissal.

The Seymour-Smith case has raised the issue of the legality of the two-year qualifying period of employment before employees may bring a claim for unfair dismissal. The Observer in April reported that many employees are having their employment contracts terminated only days before completing the two-year period which is necessary to gain employment protection. At present, full-time employees must have accumulated two years' continuous service, while for employees who work between eight and 16 hours per week, the qualifying period is five years.

In the Seymour-Smith case, the employment protection legislation is challenged on the grounds that it is indirectly discriminatory. This is because the proportion of women adversely affected by the legislation's service requirement at the time the case was first brought (1991) was higher than the proportion of men. In mid-March 1997, the House of Lords referred the case to the European Court of Justice for determination. There are now thousands of claims in this area before industrial tribunal s, with more being brought every day, according to the Trades Union Congress (TUC. Although the Seymour-Smith case is based on discrimination law, if the claimant is successful, it will indirectly affect all employees - otherwise men could argue that it would indirectly discriminate against them if the period were reduced or abolished for women only.

The National Association of Citizen Advice Bureaux (NACAB) and the TUC both reported in 1993 that the number of clients and individual trade union members who are sacked without reason, but are unable to claim unfair dismissal because they do not qualify, had increased significantly. Many of these employees were either being re-employed days later or had noticed that their job had since been filled by another person.

NACAB recommends that the qualifying period for claiming unfair dismissal should be reduced to six months and, along with the TUC, that in some cases there should be no qualifying period at all except perhaps a short probationary period. The Institute of Personnel and Development (IPD), which represents personnel managers, is also in favour of creating a sense of security at work while at the same time giving employers a chance to rectify mistakes. It therefore recommends a one-year qualifying period. According to the Observer, employer advisors such as the solicitors firm, Evershed, say that their advice to employers is the same as when the qualifying period was one year (pre-1985) and when it was six months (pre-1979): "if you are going to make a decision about an employee make it before then."

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