Day-one unfair dismissal rights and a six-month probationary period – how will that work?
The most significant UK employment law reform for 30 years includes radical plans for unfair dismissal rights to be available from day one of employment. When this was announced before the election, the government indicated that this would not prevent the “fair and transparent” use of probationary periods to assess new hires, and the Financial Times reported last week that employers will be able to engage new staff on probationary periods of up to six months, allowing them to be dismissed more easily in this time.
This, naturally, raises the question as to how a six-month probationary period will sit alongside a day-one right. The answer to that question remains unclear.
Is it essentially a six-month qualifying period in disguise? Maybe. Although, if that is the intention, it would be much simpler to acknowledge that and reduce the qualifying period to six months, noting that to do that would lead to accusations of a U-turn by the government on its promise of day-one rights.
Or does it mean that there will be different rules and/or processes for dismissals in the probationary period, perhaps more onerous than during a qualifying period but less onerous than once full unfair dismissal rights kick in? Maybe. Under this approach, there would still be a day-one right and so those dismissed during their probationary period could still pursue a claim, but it would essentially create a new “tier” of unfair dismissal protection for probationers, something employers would need to grapple with to ensure they act fairly.
We suspect the second approach is more likely, although the options under it are plentiful. For example, there could be different potentially fair reasons available to employers, a lighter-touch process, or a different standard of proof such as a general obligation to act “reasonably” if dismissing during the probationary period. It’s also unclear whether employers will have any scope to extend probationary periods if a longer period is needed to assess suitability.
A six-month probationary period is not, in itself, an unusual concept for employers but the role of the probationary period looks to be taking on additional significance under the day-one right reforms.
As ever, the devil will be in the detail. Whether that detail is contained within the imminently expected draft Employment Bill remains to be seen. The draft bill is due by early October if the government stands by its promise to introduce it within 100 days of coming into office.
