Given that a nine-month statutory probationary term is expected, the new day-one unfair dismissal right is not entirely what it seems.
One of the most well-known but least well-liked (by employers) reforms to be made by the Employment Rights Bill (“the Bill”) is making protection against unjust dismissal a day-one right. The UK government has indicated that the reforms will go into force no earlier than Autumn 2026, which is just under two years from now, impacting how employers handle disciplinary actions. This is maybe the first thing employers must be aware of when it comes to dismissing an employee. In the interim, the current system will remain in place, requiring two years of service—in most cases, 103 weeks because of the mandatory notice period—for employees to be eligible. In 2025, consultation is expected to start regarding the new automatically unfair dismissal rights.
The proposed change for unfair dismissal
The United Kingdom Government characterises this modification as “making unfair dismissal protection a right from day 1 for all employees while legislating to introduce fair and proportionate processes for dismissal in initial periods of employment”. The procedures being discussed are meant to be less burdensome than those that are now necessary for a just dismissal. Employers will want to know how much less burdensome it is.
The UK Government suggests that, “as a starting point” the process should involve meeting with the employee to explain the performance concerns, at which the employee may choose to be accompanied. This is stated in the paper that was published alongside the Bill “Next Steps to Make Work Pay” (“the Paper”). A letter outlining the basis for the dismissal might be all that was needed, according to reports before the Bill’s publication, but that appears doubtful now. Although it would seem that a meeting might deter a dishonest employer from firing someone for, say, a discriminating cause, does the phrase “as a starting point” foreshadow other actions that all employers, good and bad, will need to take? Will companies be required to provide the worker with any kind of improvement opportunity? What occurs if an employee reports absenteeism in response to a request to attend a meeting? Employers should be sure to reply to the consultation when it opens if they wish to influence how this change will operate.
The length of the “initial period” of employment (a statutory probationary period) during which the less onerous approach will apply is another component of the idea that the UK Government will be soliciting opinions on in the consultation. According to the paper, nine months is what the UK government prefers. The amount of compensation that should be offered for successful claims resulting from termination during the statutory probationary period will also be discussed.
What are the responsibilities of employers?
We are still far from knowing exactly what will be expected of employers, even if the Bill’s publication, its companion paper, and its explanatory notes have given us more food for thought. Employers should now be anticipating the release of the pertinent consultation; we will draw attention to it and offer a link when it is available. The new regulations regarding termination during a statutory probationary period must be unambiguous, simple, and easy to understand; this is especially important for small enterprises and SMEs without a professional human resources department.
The new rules will be outlined in regulations after consultation. The UK government has stated that before the regulations take effect, firms will have a “substantial period” of time to get ready and adjust. Employers will eventually have to take action to make sure that their policies and procedures are in compliance with the new law and that those who make decisions about terminations are adequately informed about it.
Legal advice from our Employment Law Solicitors – Unfair Dismissal Lawyers
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