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Get in touch 0117 325 0526
Tags: Day 1 rights, The Employment Rights Bill, unfair dismissal
Categories: Employment Law
The new ‘Day 1’ rights
Immediate ‘day 1’ rights will be the right to Statutory Sick Pay (SSP) from day 1 of employment, with an end to the current three ‘waiting days’. Many of you don’t insist on withholding payment until day 4 of sick leave, but for those of you who do, this will mean an additional cost.
Parental leave and bereavement leave will also be available from day 1 if the employee qualifies for them.
Unfair dismissal
The really big change is going to be the much-heralded right to unfair dismissal protection from day 1 of employment.
We have learned that this is going to be subject to the caveat of a slightly different process during what will be a statutory probationary period, which will apparently be somewhere between 3 and 9 months long (to be decided later by regulations), rather than the traditional 3 or 6 months we see in most employment contracts.
Could this 3-9 month period be a case of the new government wishing to be kind to employers by watering down the actual impact of this being a ‘day 1’ right? It feels akin to the ‘third way’ approach of legislation from the Blair years, which sought to balance the rights of workers and employees.
It remains to be seen what the dismissal rules will be for someone who is in that 9-month probationary period. We expect it will involve a watered-down version of the standard rules about what a fair dismissal requires. However, this aspect will only apply to dismissals for performance, conduct and other suitability of the person for the role, leaving the likelihood that full unfair dismissal protection will still apply from the very first day of employment for other types of dismissal unrelated to personal suitability, such as redundancy and perhaps ill-health.
It therefore looks like redundancy processes will suddenly get more expensive, as the quick and cheap option of firstly dismissing all those with under 2 years’ service will immediately become a thing of the past.
We’ve not yet seen any hint of the 2-year qualifying period for statutory redundancy payments being altered.
Slow introduction
The government has indicated that this new unfair dismissal protection will not actually come into force until October 2026, which therefore gives employers 2 years’ advance warning.
We expect that, when it comes into force, it will apply to all existing employees as well as brand new employees, meaning that anyone employed now will effectively have just under 2 years before they gain unfair dismissal protection and anyone employed in October 2025 will have to wait 1 year (and so on). In other words, a gentle phasing in with a tapering effect.
Implications for employers
It’s clear that most employers are going to have to get considerably better at the quality of their recruitment and probationary processes if they wish to avoid a significant increase in the risk of unfair dismissal claims.
There are plenty of employers who still take a rather basic approach to recruitment, not spending the time carefully defining the job description and person specification to provide real clarity over what sort of person they are looking for, or using a rather slap-dash sift and interview process to decide who to appoint. Since it’s now soon to become a lot more legally risky to make a poor recruitment decision and exit a recent hire, those handling recruitment need to up their game to ensure they make a good choice the first time round.
If you have been seeking to improve your organisation’s approach to recruiting, now’s the time to really get cracking! The perfect reason and time to make improvements.
And in terms of this new statutory probationary period, the vast majority of employers are going to have get a great deal better at how they monitor and review their probationers and become swifter in taking of action where someone is not measuring up to the requirements of the role.
Line managers are going to need to realise that the rules of the game are changing significantly. No longer will they be able to go to HR just before the 2-year point and say that the new(ish) recruit is not up the job and needs exiting. Ideally, they will work this out during the recruitment process where possible, or at least in the first few months, and to have a sufficiently specific and measurable set of performance and suitability requirements to provide a properly justified and evidenced basis for dismissal.
We suspect that, for many organisations, this is going to require a major culture change and a lot of management training. At least we have almost two years in which to achieve this.
As soon as the new probationary period dismissal rules are published, we will be very pleased to provide training to your managers and executives on this aspect.
If we can help your business with employment advice or to prepare for these changes, please get in touch with us on 0117 325 0526 / enquiries@menzieslaw.co.uk (or click below to complete our enquiry form)
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