Pictured: Annette Wood

Local law firm Andrew & Co LLP does not agree that recently announced proposals to change unfair dismissal rights will necessarily lead to fewer tribunal claims and warns that not only could discrimination claims 'fill the gap' but that employers must also deal with the burgeoning impact of social media in the workplace.

Following the Government's recent announcement of a proposed two-year qualifying period for unfair dismissal, experts are suggesting it could shift the type of claims made. Under current legislation, unfair dismissal claims can only be made after being employed for a qualifying period of one year; this could increase to two years from April 2012. The Government is also considering a proposal to charge employees a tribunal fee of up to £1250 to bring such claims. 

Annette Wood, an employment specialist with Andrew & Co LLP says the changes are being proposed as part of the Government's strategy to encourage businesses to grow and stimulate employment prospects. There are concerns that the proposals will not deliver the benefits promised. 

"The Department for Business suggests the changes could save employers £6m a year in tribunal costs, and see unfair dismissal claims fall by around 3000 a year. However, it's highly likely we'll simply see other types of claim increase, which are potentially more costly and time-consuming to defend, claims like discrimination and whistle blowing, which can be made from day one of employment."

Annette says it's feared that workers believing they've been dismissed unfairly before the two year qualifying period could increasingly claim they were discriminated against, or harassed for speaking out about company practice. Discrimination claims currently have no upper limit at tribunal, whereas unfair dismissal claims are capped.

Recently published figures from the Ministry of Justice reveal a sharp rise last year in the number of age discrimination claims, and with the recent removal of the default retirement age at 65, these look set to increase.

Annette also points to another rising area for concern in employment practice; managing social media in the workplace. She says: "Cases are on the up, with two recent examples highlighting the need for companies to have clear policies in place to avoid this new minefield."  She describes how, earlier this year, pub chain Wetherspoons successfully defended an unfair dismissal case after one of its employees posted rude comments about customers on her Facebook page during working hours. The judgement went in Wetherspoons favour because it had a clear policy with grounds for disciplinary action, which it had properly implemented. 

But in the most recent tribunal decision, Whitham v Club 24, an employee who let off steam on Facebook was found to be unfairly dismissed.  Here the case hinged on the lack of a clear social media policy combined with a failure to follow the processes in place for misconduct.  

Annette said: "Of course employees need protection against bad employers, but more often than not, cases succeed because due process has not been followed by an employer. Employers must make sure they keep up to date with the law and that both policies and procedures are robust. That's the best way of reducing this risk and minimising tribunal costs."

The proposal to charge employees a tribunal fee of up to £1250 is intended to tackle weak and groundless claims, and consultation begins in November 2011 to look at fee levels, and whether reduced rates could apply, in certain circumstances.  It is unlikely that an upfront fee to lodge an employment tribunal claim will be introduced before 2013.

"The Employment Law landscape is set to change again if these proposed reforms become law. Whilst encouraging employers to create more jobs is to be commended, the law should protect employees who are unfairly dismissed. No doubt 2012 will see further legislation for employers, and employees, to grapple with," concluded Annette. Any employer or employee with concerns over employment law can call Andrew & Co LLP for advice on 01522 512123 or 01636 673743 .