Unfair Dismissal Extended To Day One

Remove the service requirement for unfair dismissal claims

Unfair Dismissal Extended To Day One. Labour plans to remove the length of service requirement; meaning unfair dismissal to become a day one right for all workers. The proposed new rules will require an employer to have a fair reason and follow a fair process when dismissing an employee, regardless of length of service, giving employees immediate access to unfair dismissal claims.

Unfair dismissal rights were first introduced in February 1972 when the qualifying period for claiming unfair dismissal was six months. The qualifying period for claiming unfair dismissal has fluctuated from the first six months of a new job to the first two years since its introduction, but has been set at two years since 2012.

Proposed Changes

Under the current regime employees have to accrue two years service to claim unfair dismissal. Labour intends to make unfair dismissal a “day one” right for all workers – meaning the qualification period, currently two years, would be removed.

Probationary Periods

Labour have said that probationary periods with a fair and transparent process will not be prevented, so we should still be able to assess new recruits and dismiss them, when necessary, without going through the full disciplinary or capability procedure. (Southern Ireland have such legislation and they have a cap of 6 months on probationary periods, but they can be extended by 6 months thus giving you one year to assess a new employee) Six months probationary periods would, in effect, revert back to the shortest qualifying period historically (under the Labour government between 1974 and 1979).

The use of the word ‘Worker’ means the new regime will apply to both employees and workers; it could also be taken in context with Labour’s other promise to move towards a single status of worker, rather than employees and workers. What is clear, is we will no longer be able to just let someone go – without having a meeting with them, giving them the right to be accompanied and serving notice.

The European Perspective

The EU introduced the Transparent and Predictable Working Conditions Directive in June 2019 and became law in Southern Ireland on 16 December 2022.

Under the Regulations probationary periods are prevented from extending beyond six months for private sector employees. In exceptional circumstances, the six-month probationary period may be extended to a maximum of twelve months if it is in the best interests of the employee.

Employees who had completed six months service and were subject to a probationary period that exceeded six months were regarded to have completed their probation on 1 February 2023, even if their probationary period would otherwise have continued beyond that date.

Probationary periods can be extended to allow for periods of employee absence.

Any probation period for employees on a fixed-term contract must be proportionate to the length of the contract. An employer cannot include a new probation period when renewing a fixed-term contract.

Timescales

This was one of Labour’s flag-ship proposals, so I would expect these changes to be a priority. Therefore these changes may be implemented relatively quickly because primary legislation is already in place. As we saw with the Covid pandemic, secondary legislation can be implemented relatively quickly.

Labour, did however, promise, in their election manifesto, that there would be a full and comprehensive consultation. An updated (or new) ACAS Code of Practice would also be required, which will need to be consulted on. SO, whilst this will be a priority for Labour, April 2025 seems unrealistic, and October 2025 or April 2026 seem most likely.

More details of how this change will work in practice will be available once the consultation period is open for comments. I will update this page when the consultation paper is published.

Top Tips

We will have to wait for more information to emerge but it is possible that qualifying period will be removed for claiming unfair dismissal and failing a probationary period will be added to the list of fair reason for dismissal.

Labour may also look at the minimum notice periods which an employer must give to an employee when terminating their employment. The current regime is one weeks notice after one month’s service, which increases to one week after 12 month’s service with an additional week for each complete year of additional service up to a maximum of 12 weeks.

In the short-term I recommend that you review your recruitment processes to ensure that you have a robust process in place and ensure that probationary periods are managed effectively. Contracts of Employment should also be reviewed to ensure probationary periods are clear, flexible and lengthy.

Probationary Policies should be reviewed to ensure the process around dismissal involves a meeting with the employee.

If you employee staff on fixed-term contracts, ending the contract still counts as a dismissal so this process would need reviewing to ensure compliance.

Employee Handbook Compliance Package

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