The right not to be unfairly dismissed is absolutely central to UK employment law – and the question of who qualifies for that right is something of a political football. Put simply, how long should an employee have to work for an employer before the employer should be required to act reasonably in choosing to dismiss? At the moment, that period is two full years. 

It is worth being clear about what this means – because this is often glossed over. An employee who has been continuously employed for less than two years can be dismissed – provided the employer gives notice – on a whim and for no good reason at all.  The employee can claim discrimination if the reason for dismissal is a protected characteristic (race, sex, religion etc) or because of something arising from a disability. There are also some grounds for dismissal which will always be regarded as unfair and which do not require a qualifying period (whistleblowing, trade union membership, asserting a statutory right and more). But those exceptional cases aside, the employer does not have to justify a decision to dismiss an employee with less than two years’ service. The employer might suspect the employee of misconduct without any evidence, or wrongly blame the employee for a mistake. Frankly the employer just might not like the way the employee sips their coffee. Inside two years, the employee has no right to complain no matter how unfair the decision to dismiss is. The qualifying period for unfair dismissal is a licence for an employer to act wholly unreasonably. 

Two years does seem quite a long time for an employee to have to wait for the right to be treated fairly – and the qualifying period has not always been so long. While it was 104 weeks when the right not to be unfairly dismissed was introduced in the Industrial Relations Act 1971, the incoming Labour Government reduced it to 26 weeks when it came to power in 1974. The Conservatives returned in 1979 and increased the qualifying period to one year in 1980 and then to two years in 1985. It remained that way until the New Labour Government of 1997 reduced the period to one year. Then, when the Conservative led coalition began in 2010, the qualifying period was put back up to two years.

Spot any patterns here? Conservatives go for a longer qualifying period and Labour favours a shorter one – and that has been the pattern for half a century. 

But with a general election due in the next year, and Labour currently looking likely to form the next Government, the question is whether – this time – they might abolish the qualifying period altogether. That is certainly current Labour Party Policy. The policy paper “A New Deal for Working People” says that Labour will ‘end this arbitrary system and scrap qualifying time for basic rights such as unfair dismissal’. Whether that policy will make it into the manifesto remains to be seen and there is some suggestion that Labour might be rowing back slightly from this position. Back in August, the Financial Times reported that Labour would still allow employees to be dismissed during a proper probationary period. 

Unfair Dismissal was first proposed as a right by the Royal Commission on Trade Unions and Employers Associations 1965-1968 (The Donovan Commission). They considered whether there was a need for a qualifying period of two years as there was for the recently introduced right to a redundancy payment. They concluded:

“We see no justification however for limiting protection form unfair dismissal to those with at least two years’ service, since the fact that he has been dismissed after a short period of employment could in some circumstances have a serious effect on an employee’s future prospects. When the terms under which an employee was engaged provide for a probationary period of service this is a factor of which due account must be taken”

Donovan Commission, para 555, page 149

I think that is rather well put and stands the test of time. If your CV shows that you worked for an employer for just a few months before moving on, then that will not generally look good. You may also have left secure employment on the promise of the new job and to have it unreasonably taken away from you is no less upsetting or unjust simply because you have been in the role for less than two years. And if we did abolish the qualifying period, then Tribunals would develop case law that set out a fair way to deal with employees who fail their probationary period. 

But while that case law developed there would be considerable uncertainty about what employers were expected to do. The Government could set out a fair way to manage probation in legislation, but in reality that would just lead to uncertainty about how the new rules would be interpreted. It is also a change that would require primary legislation – an Act of Parliament – taking up precious parliamentary time. 

I suspect that what will happen in the end is that the Government will set a six-month qualifying period. That change only requires a Statutory Instrument and can be done quickly and with little fuss. Indeed, one of the reasons that a change in the qualifying period takes place so predictably when there is a change in Government is that the change is quick and easy to make. Since most probationary periods are six months long anyway, I suspect a new Government would rather make the simple change quickly rather than take longer to do something more complicated.