The Government announced in its Plan to “Make Work Pay” that it wanted to make unfair dismissal a “day-one” right.  We don’t yet know exactly how this will be achieved and what impact it will have on the existing law around unfair dismissal.

A day-one right means employees don’t need to have been employed for a minimum period to be entitled to claim something. Discrimination rights, for instance, already apply from day one, and indeed before employment starts.

What is the current unfair dismissal law?

At present, employees can only claim “ordinary” unfair dismissal once they’ve been employed for at least two years. There are, confusingly, some types of “automatic” unfair dismissal where employees don’t need two years’ employment – I’ll come back to these below.

What are the fair reasons for dismissal?

The law sets out 5 potentially fair reasons for dismissal: capability or qualifications, conduct, redundancy, breach of a statutory duty or restriction (“illegality”), or “some other substantial reason” (SOSR).

Employers have to show that their stated reason was the real reason for dismissal, and that they acted fairly and reasonably in dismissing, which essentially means that they followed a fair procedure before deciding to dismiss.

What are the procedures for dismissal?

Employers must follow the Acas Code of Practice on Disciplinary and Grievance Procedures, which can be found here, where they dismiss because of misconduct, poor performance, or because of anything the employee is alleged to have done or not done. In redundancy cases, a redundancy consultation procedure should be followed – and collective consultation processes also apply if more than 20 employees are to be made redundant.

Broadly speaking, employers should investigate, meet with the employee to allow them to explain their response to the allegations/situation, set out their decision in writing, and allow an appeal.

It’s not uncommon for “commercial” procedures to be used to avoid disruption to the business, and I advise on how to achieve the desired result whilst managing the risks involved.

Can employees currently claim unfair dismissal under two years service?

There are some special types of dismissal which are automatically unfair and don’t need two years’ employment. For example, the minimum service requirement doesn’t apply if an employee is dismissed for a discriminatory reason, say because they made a flexible working request, or are pregnant or on maternity leave, or because they blew the whistle on their employer’s wrongdoing.

What are the rights of day one unfair dismissal?

Assuming that the Government removes the 2 year service requirement, employers will be subject to the current unfair dismissal requirements for a fair reason and fair procedure from the start of employment. They’ll also need to follow the Acas Code of Practice.

Without any sort of provision for a reduced procedure for those still on probation, this seems pretty onerous on employers.

It could make employers beef up their recruitment processes – but that isn’t necessarily a good thing either. If recruitment takes too long, with too many stages, good candidates will find a role elsewhere before a long-winded process has been completed.

Indications from a recent Financial Times article, however, are that Labour plans to allow employers to continue using probation periods of up to six months. This is a fairly standard probation period across the board.

But, what about the mechanics? If employees can claim but employers can still use probation periods, will employees on probation be able to claim unfair dismissal? Or will there be an exclusion for employees on contractual probation periods? Or, will dismissing while on probation carry reduced procedural requirements?

What about withdrawing an offer before the employee starts – currently there is a potential claim for notice pay, but unlikely more (unless the employer doesn’t use a shortened notice period during probation – or doesn’t use a probation period at all – in either case we should probably talk).

Will contracts still be able to include a right to extend probation if the employer wishes – though presumably they won’t be able to extend beyond the apparent six month maximum probation period.

We don’t yet have confirmation of any of this from the Government itself, or details of how it will all work. We do know from Angela Rayner’s speech at the party conference on 22 September that the Government plans to publish the Employment Rights Bill in October.

So, for now we keep waiting. And hopefully, I’ll be able to update this blog during October.

If you need help with the recruitment or termination of employees, including putting together contracts that will deal with the new laws, and deciding on the process you want to use, or if you’re an employee being dismissed during probation, just get in touch to book an exploratory call so we can talk through your situation and how I can help.

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The contents of this article does not constitute legal advice and should not be relied upon. Always consult a legal professional before taking any action.