As we have previously reported, the newly elected Labour government promised a wide set of employment law changes in its election campaign. In the recent King’s Speech, it has now confirmed that one of the changes included in the new Employment Rights Bill is to extend protections against “ordinary” unfair dismissal from day one of employment.
Although the exact details are yet to be confirmed, this proposal marks a significant departure from the current regime which requires an employee to have at least two years of continuous service to make a claim for unfair dismissal.
It is important to note that under current law there are already certain situations where employees can bring claims for unfair dismissal without having two years of service. These include situations where the reason for dismissal is one of the “automatically unfair reasons “, such as for a health and safety reason, for reasons connected with pregnancy, childbirth or family leave, for making a protected disclosure, or for asserting a statutory right.
The government has clarified that its proposal will not obstruct legitimate dismissals, such as performance, conduct or redundancy, nor will it eliminate “probationary periods with fair and transparent rules and processes“. The government’s plan is to allow employers to use probationary periods to evaluate new employees, whilst ensuring that they cannot be dismissed arbitrarily.
As it stands, it is unclear if the new changes will apply to employees only, or will extend to other “workers” who currently do not have a right to bring unfair dismissal claims at all.
So, what can employers do to prepare for this change?
Employers looking to navigate the new employment landscape effectively should consider the following measures:
- enhance the thoroughness of recruitment and background checks;
- provide all new hires with a contract that includes a probationary period;
- consider extending probationary periods, while recognising that the new law may limit the maximum period of probation;
- ensure there are reviews of the new employee’s performance during the probationary period and extend it further if required;
- review current policies to ensure they specify whether they apply to employees on probation;
- make sure records are up to date, including employees with short service. This includes records on performance, behaviours, skills, attendance, disciplinary actions and chances for improvement; and
- ensure managers are trained and encouraged to consistently gather supporting evidence for any issues that may arise with the performance or behaviour of a new hire.
It is anticipated that there will be an increase in the number of cases brought before employment tribunals because of this change. Employers should therefore review their contracts, policies and working practices in preparation for dealing with new challenging situations in the workplace.
