The Employment Rights Bill is still making its way through Parliament and we’re not expecting most changes to be in force before Autumn 2026. It’s a big piece of legislation so, as expected, it is taking a while. And even when the Bill does become law, much of the finer detail will be dealt with by, yet more, secondary legislation.
But it’s understandably frustrating for businesses who are trying to plan ahead and prepare for the workplace changes.
The Bill, plans to introduce reforms to a wide range of areas, such as redundancy, sick pay, zero hours contracts, parental rights and sexual harassment. For a checklist on what is expected to change, see our previous blog: Is your business ready for Labour’s employment law shake-up?
Unfair dismissal: what we know
Ending the employment of an individual who hasn’t worked out carries reduced legal risk before the two-year point (although it should be remembered that there is no qualifying period for certain claims, such as those involving discrimination or whistleblowing).
What we do know is that the Bill provides for the 2 year qualifying period to be abolished, in line with the government’s stated policy of protecting employees against dismissal from day 1.
Along with this, there is a proposal to introduce a shorter, statutory probationary period during which employers will be able to follow a modified, lighter-touch process to fairly dismiss employees who are unsuitable.
Unfair dismissal: what we don’t know
We don’t know how long the new statutory probationary period will be – 3, 6 and 9 months have been suggested. We also don’t know what the “lighter touch” process will involve. These details will be subject to consultation so we will have to wait and see.
What are the implications?
Whatever the final detail of the statutory probation period, the abolition of the qualifying period for unfair dismissal means that employers may wish to beef-up their recruitment processes to try and avoid hiring mistakes – which will carry more risk to rectify and take more time and resource to implement.
Changes to recruitment could include:
- Extending the internal timeline for recruitment to ensure enough preparation is done on job description, person specification etc. so that the person you appoint really is the person your business needs.
- Enhancing the processes for ascertaining candidate suitability. Procedures could be made more robust and in-depth, for example, introducing written tests for certain roles, adding additional interviews with other members of the team or using biometric/personality testing.
- Reviewing how you screen/interview candidates – do you need more face-to-face interactions earlier in the process to start assessing suitability? Do you need candidates to undertake more team-based/problem solving assessments or to spend time with the relevant team before you make a hiring decision?
Businesses will also need to review current practice in relation to probationary periods and look at any wording in contracts and relevant policies such as the performance management procedure to ensure these still work once the statutory probationary period is in force.
If you don’t already have one, consider if you need a process just for managing performance during probation (and make sure this is robust) so that you can evidence your actions in the event of any claims, going forward.
Can we help you?
We can help you review and amend your people policies and procedures and advise on implementing practical changes to ensure you remain compliant and mitigate legal risk. We also offer extensive training options to help your workforce get to grips with new legal requirements.
