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Rise in discrimination claims predicted

Solicitors warn of 'sting in the tail' after unfair dismissal rules change

16 April 2012

Employment lawyers have predicted an increase in discrimination and whistleblowing actions after the qualification period to claim unfair dismissal increased from one to two years at the start of this month.

Phil Allen, partner at Weightmans, said the change applied to new recruits who started work on or after 6 April 2012. He said the government hoped the move would encourage employers to recruit, as there would be a longer period during which they could be dismissed.

However, he said employers should remember that in recent years there had been an increase in the number of alternative claims, including claims for discrimination based upon any of the protected characteristics and claims resulting from a public interest disclosure or whistleblowing.

“We expect to see an increase in these types of claims, as aggrieved ex-employees with short service try to fit their complaints within a legal claim they can pursue,” he said.

“As a result, care must always be taken in considering why you are dismissing any employee and what risk there may be of a claim.”

Jo Davis, joint head of employment at BP Collins, agreed that claimants would look for another route if they felt aggrieved.

“There may be a reduction in claims, but I would have thought it would be no more than ten per cent,” she said.

Davis said two years was quite a long time to be in employment without having unfair dismissal rights.

“This might encourage employees to hang onto their jobs and be reticent about moving,” she added.

Leon Deakin, associate in the employment department at Thomas Eggar, said the last few years had seen a rise in discrimination and whistleblowing claims from staff wanting to “strike back” at their employer.

“As these claims tend to be more complex and therefore expensive to defend there could be a nasty sting in the tail for employers and the coalition.”

In a separate development, the government has responded to lobbying by the Law Society and agreed to amend the Equality Act to make it clear that employment lawyers can be ‘independent advisers’ for the purposes of compromise agreements involving discrimination.

The Equality Act 2010 (Amendment) Order 2012, which also came into effect on 6 April, amended section 147 and confirmed that an employee’s lawyer can be an independent adviser for the purposes of preparing a compromise agreement.

This time last year the Law Society obtained two conflicting QCs’ opinions from John Bowers QC and Tom Linden QC on the issue of whether clients could obtain advice from their solicitor.

Meanwhile, the government’s Equalities Office said there was no change to the existing position, backed by an opinion from its own counsel, that only solicitors who had acted for another party were prevented from advising on agreements.

John Wotton, president of the Law Society, said the wording of the section cast doubt on whether a solicitor for the employee could be recognised as an independent adviser.

“This could have rendered unenforceable any discrimination-related elements of a compromise agreement made following an employment dispute on which the solicitor had up until that point given advice to an employee,” he said.

“Employers would not have been able to safely rely on these agreements without the risk of challenge due to the ambiguity in the legislation.”

Categorised in:

Termination Discrimination