New Government plans for day one unfair dismissal rights have been leaked

The Financial Times appears to have obtained documents outlining the Government’s intention to introduce much stricter protections for new employees. However, they will also allow employers to “keep new hires on probation for up to six months”.

Now this isn't entirely unexpected. The Labour Party's pre-election promise to extend unfair dismissal protections from day one made it clear that probationary periods would likely play a role. Six-month probation periods are also common in most employment contracts, so this proposal seems to align with current practice.

This raises questions around how these extended probationary periods will interact with unfair dismissal rights. For instance:

• Will employers have a simplified dismissal procedure during this six-month period?
• Will the new rules apply to employment contracts retrospectively (i.e. to all employment contracts in force) or only to contracts created after the law comes into effect?
• Will this simply give employers a defence to a claim for unfair dismissal (rather than the employees simply not being allowed to bring those claims) – meaning employers would still be forced to incur the cost of defending unfair dismissal claims by employees?

But perhaps the most important question on your mind is: Is there anything you can do about it right now?

In short – yes, here are a few things you can do:

• Work on the basis that the new ‘day one right to unfair dismissal’ is going to come into force soon and when it does, it will apply to all contracts of employment straight away (basically, the worst-case scenario).
• Review your contracts, and make sure any new employment contracts you issue to staff have a very clear and well-drafted probationary period clause, which expressly confirms that the probationary period is for 6 months. Keep in mind that there will probably be little point making the probationary period extendable past (or longer than) six months – I expect the Government will have thought about that potential loophole..!
• Review your workforce. Are there any troublesome employees who have over six months but less than two years’ of service? If yes, you might want to act now…

If you would like to discuss how your business can start making those changes or need help drafting employment contracts or probation clauses, our specialist Employment Team would be happy to assist you further. Please email info@leathesprior.co.uk or call us on 01603 281153.

If you’re interested more generally in how your business can best prepare for the Government’s new Employment Rights legislation, get in touch to book a space at our next Modern Employer seminar, titled 'Seeing Red?'. Contact Rhiannon Bond via rbond@leathesprior.co.uk to book.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any specific circumstance.

Source: UK employers to retain right to place new hires on 6-month probation (ft.com)