Current Law
Under current law, employees can generally only bring a claim for unfair dismissal if they have at least two years’ qualifying service with their employer. There are exceptions to this where employees can claim automatic unfair dismissal where dismissals are for reasons such as pregnancy or childbirth, health and safety activities and whistleblowing.
Extended Rights Proposed for those who can claim unfair dismissal
The new Employment Rights Bill published in October 2024 by the Government, proposes to abolish this two year qualifying period of service for unfair dismissal, so that all employees will have the right not to be unfairly dismissed from day one of their employment.
The Government considers around 9 million employees have less than two years’ service so this will provide additional protection for them and drive up standards in the workplace.
Will there be any exceptions to this new law?
There is proposed to be an ‘initial period of employment’ where there will be a ‘lighter touch’ process for employers to follow if they wish to dismiss an employee if they are “not right for the job” as described in the government’s factsheet (Factsheet). This initial period of employment is also described in the Factsheet as a “statutory probationary period”.
The government intends to consult on how long this period will be but current indications are that they are looking at a period of 9 months. The length of this “initial period of employment” will be specified in regulations which are yet to be published.
Employees who have not yet started work will however not gain this new unfair dismissal protection.
What about redundancy dismissals?
It appears that redundancy dismissals are excluded from any “lighter touch process” so employers will need to ensure that they follow the same procedure for all as necessary from day one of employment. The Employment Rights Bill does not however change the two-year qualifying period to be entitled to a statutory redundancy payment.
When will the new right for day one rights to unfair dismissal come in?
Current indications are that this will not be in force any sooner than Autumn 2026.
Comment
The detail is unknown as to exactly what the new obligations on employers will look like and there will be time before any new legislation comes in for employers to prepare and adapt. However, it is anticipated that this is likely to result in a marked increase in employment tribunal claims from employees.
The contents of this article are a general guide only at the date of publication. It is not comprehensive, and it does not constitute legal advice. Specific legal advice should be sought in relation to the particular facts of a given situation.
