One of the most widely discussed Labour proposals before the election was to make the right not to be unfairly dismissed a “day one right” for employees. The Employment Rights Bill stands by this proposal, although it isn’t clear exactly what it will look like in practice. What is clear however is the impact it is likely to have for employers. Currently, only employees with at least two years’ continuous service can bring a claim for ‘ordinary’ unfair dismissal, so by making this a day one right, the Bill widens the pool of potential claimants significantly.

Overview

The headline in the Bill is the repeal of the two-year qualifying period needed to claim ‘ordinary’ unfair dismissal – employees will be able to bring an unfair dismissal claim from the first day of their employment.

Employees will not ordinarily be able to claim unfair dismissal before they have started work, unless the reason for dismissal:

• is one of the automatically unfair reasons currently listed in the Employment Rights Act, such as whistleblowing or trade union activities
• relates to their political opinions or affiliation, or
• is connected with their membership of one of the reserve armed forces.

The Government has always recognised the need for some sort of probationary period so employers can ensure that a job is a good fit for both the employee and the employer, and the Bill provides for an ‘initial period of employment’, during which dismissals may not be subject to the usual requirements of fairness if the reason for dismissal falls within a particular category, such as dismissal for capability, conduct, or some other substantial reason.

The Bill also provides for the repeal of the two-year qualifying period for the right to written reasons for dismissal. Employees will qualify for this right instead after the ‘initial period’.

The length of this ‘initial period’ and the detail of how employers can dismiss fairly during this period is not set out in the Bill but will follow in regulations yet to be published.  We do however have some idea of what the Government is proposing from the Factsheet that accompanies this part of the Bill. The Government proposes that for the first nine months of employment (described as a ‘statutory probationary period’), a lighter touch and less onerous process for businesses to fairly dismiss someone who is not right for the job will apply.

The length of the probationary period and how the lighter touch dismissal process will operate will be the subject of consultation in due course. Most commentators believe that some form of statutory dismissal process will be put in place during the probationary period, for example with a requirement for a meeting at which the employee has the right to be accompanied.

The consultation will also seek views about the unfair dismissal compensatory award regime for dismissals during the probationary period.

Comment

Even if employees can be fairly dismissed within the first nine months of employment by following a straightforward statutory process, they will still have the right to being a claim for unfair dismissal, however unmeritorious.  So, it will inevitably become more risky to dismiss employees with short-service, and we are likely to see an increase in unfair dismissal claims in the employment tribunal. The question is whether the increase in unmeritorious unfair dismissal claims will be offset by a decrease in unmeritorious claims for discrimination, whistleblowing and other automatic unfair dismissal claims – the sort of claims employees without unfair dismissal rights currently lodge with the employment tribunal.

The Government has confirmed that these changes will not be implemented before Autumn 2026. In the meantime, employers would be well advised to look at how they are managing probationary periods at the moment and consider whether recruitment and performance monitoring practices could be improved in order to ensure new recruits are the right fit for the business and the role.

If you’re a business and would like more information about this issue, please contact Lorna Croft – lorna.croft@pannonecorporate.com

Facts of the case

Gabriela Rodriguez worked as a cleaner at the offices of Devonshires Solicitors for two years, via contractor Total Clean. She claims she was sacked last year after Devonshires complained that leftover sandwiches were not being returned. She admits eating a £1.50 leftover tuna sandwich, which she thought would be thrown away. Ms Rodriguez is part of United Voices of the World union (UVW), which claims that cleaners (most of whom are migrant workers) are “routinely dismissed on trivial and […] discriminatory grounds. Many describe feeling like the dirt they clean.”

UVW claims Devonshires would not have complained about Ms Rodriguez if she was not a Latin American with limited English. She has brought claims for unfair dismissal and direct race discrimination against Total Clean, and direct and/or indirect race discrimination against Devonshires Solicitors. Devonshires deny that they made any complaint about Ms Rodriguez and Total Clean maintains that it followed a proper process before dismissing her.

Takeaways

It is difficult to comment on the rights or wrongs of the case without having more detail about what exactly happened. However, it would seem the rules that applied to Ms Rodriguez may not have been clear enough. Many employees would not consider eating a sandwich they believe will otherwise be thrown away as dishonest.  If it counts as dishonesty in your organisation, you should make that clear.

It remains to be seen whether Ms Rodriguez will succeed with her claims or if the matter will even reach a full hearing in the tribunal – but it is certainly one to keep an eye on!