I love a State Opening! I am an absolute sucker for a man in tights carrying a stick with a Cap of Maintenance on the end even though no-one seems very sure why he is doing that. I also like the subtle symbolism of how the Lord Chancellor kneels before the King as if being highly deferential but then hands him a speech written by the Government that he is obliged to read out word for word. 

It has been a while since the actual text of a King’s (or Queen’s) Speech has held any interest for employment lawyers. The last Government reformed employment law by supporting a number of small Private Members’ Bills. And they were all pretty modest in their scope. But in this year’s King’s Speech we get the announcement of a full-on Employment Rights Bill that looks set to be the biggest employment law bill since 1975. To go along with the Speech itself, the Government published background briefing notes which set out in a bit more detail what is to be included. Those notes reiterate the commitment to ‘Labour’s Plan to Make Work Pay’ that I’ve picked apart in several earlier posts. The Employment Rights Bill, the notes say, “will deliver on policies as set out in the Plan to Make Work Pay that require primary legislation to implement”

For me that raises a question about how one of the key policies is to be delivered. As we all know, the Government intends to make unfair dismissal a ‘day-one right’, abolishing the current requirement for employees to have two years’ continuous service before they can claim that their employer has acted unreasonably in dismissing them.

(If the qualifying period is abolished altogether, the employee may not even need to make it to day one. A dismissal is the termination of the contract of employment by the employer. There is no reason why a dismissal could not occur after the contract has been entered into but before the employee has actually started – see Sarker v South Tees Acute Hospitals NHS Trust. But perhaps we shouldn’t go down that particular rabbit hole just yet.)

The change itself is simple enough – but when will it happen? If the abolition of the qualifying period is a measure to be included in the forthcoming Employment Rights Bill then it obviously won’t come into effect until the Bill has been passed – well into next year. The Government is committed to introducing the Bill within 100 days but it will take a good few months for such a large Bill to make its way through Parliament.  

But the change could happen more quickly than that.

The qualifying period is found in S.108(1) of the Employment Rights Act 1996. Under S.209 of the Act ministers have the power to “vary or exclude” the operation of that provision by Order.  So, in 1999 the qualifying period was reduced from two years to one year and then in 2012 it was put back up to two years. Neither change required an Act of Parliament – just a Statutory Instrument approved by Parliament. If the Government wanted to, it could remove the unfair dismissal qualifying period almost immediately. Indeed there is an argument for acting quickly. It isn’t necessarily a good idea to give employers lengthy notice that they are about to lose the right to dismiss – with impunity – employees with less than two years’ service. You may cause a rush! 

But what might prevent a quick and clean removal of the qualifying period is the question of probation periods. The background notes to the Kings Speech say: “We will continue to ensure employers can operate probationary periods to assess new hires”. That was also a point emphasised in “Labour’s Plan to Make Work Pay” What exactly does it mean?

If there were no qualifying period for unfair dismissal I would expect case law to develop setting out standards of fairness in the operation of probationary periods and dealing with when an employer can reasonably decide that an employee should not be confirmed in the post. That would take some years however and the Government are clearly suggesting that they will do something more proactive than just allowing case law to develop. Perhaps there will be a code of practice? Tribunals will have to then take that into account when deciding whether an employee who has failed probation has been fairly dismissed or not. Alternatively the Government could legislate to provide for a different test of reasonableness when dismissing an employee during probation. But if that is the plan then the abolition of the qualifying period will need to wait until the Bill is passed and will only come into force sometime next year. The Government might also choose to formally abolish the qualifying period by repealing S.108 altogether. That would mean that any subsequent Government would not be able to just reintroduce it with a Statutory Instrument, but would have to take the time and trouble to amend the Employment Rights Act all over again.

We should find out soon just how fast the Government is prepared to move in making the changes it is proposing. But my guess would be that the two year qualifying period will be sticking around for a good few months yet.

…

Now that I’ve said that, we’ll probably see a statutory instrument within days. Just you watch!