The current two-year service requirement to bring an unfair dismissal claim will be scrapped. But when, how, and what will the new normal look like?
I’ve read the details of the Employment Rights Bill and the supporting ‘Next Steps‘ document (so you don’t have to!), and this is what I can tell you about what a new day-one right to bring an unfair dismissal claim will look like.
1. ‘Light touch’ procedure during ‘initial probationary period’ – if you want to dismiss for conduct or performance during an initial probationary period, it’s likely you’ll have to hold a meeting to explain your concerns before dismissing. If you don’t, the employee will probably be able to claim unfair dismissal. We don’t know how long the initial probationary period may be. Nine months has been touted but is still to be confirmed following government consultation.
2. Compensation during the initial probationary period – there will be a government consultation to establish whether compensation for unfair dismissal during probation should be lower than after probation.
3. When will this become law? – we can’t give an exact date, but the government have stated that none of these changes will be before Autumn 2026.
In practice…
1. Extending probationary periods – it’s likely you’re going to want to extend probationary periods to nine months (or whatever period the government settles on) and/or give yourself the right to extend probationary periods where you believe the employee may not be right for the role.
2. Review and update employment contracts – check you have the contractual right to extend probationary periods and enforce the longest probationary period possible (assuming that’s the approach you decide to take).
3. Early-days’ performance – you’ll need to check you have robust processes and systems to support managers to track probationary periods and performance. You’ll want to train managers to ensure they make the most of probationary periods and care personally about ensuring the individual they’ve recruited has a fast and successful start to employment with you (and if not that the manager takes appropriate steps to address any issues).
Get in touch to find out how our Intelligent Employment service will support you with a practical solutions to navigate new (and existing) employment laws. Any questions on the change, please don’t hesitate to drop me a line here (or chat with your Halborns’ key lawyer).
