One of the features of the Employment Rights Bill that has attracted particular attention is the abolition of the qualifying period for unfair dismissal making it a day-one right (see Schedule 2 of the Bill). This is something that a Government already has the power to do by statutory instrument, so in theory there is no need to include the measure in the Bill at all. If they wanted to, the Government could abolish the qualifying period by Christmas.

But they don’t want to. Recognising the impact that the change will have and the concerns that the business lobby have expressed the Government has actually committed (in a Next Steps document published alongside the Bill) not to introduce the change before the autumn of 2026 – more than two years after the election. Essentially this amounts to a long transition period with the effective qualifying period reducing over time. Employees recruited today will qualify for unfair dismissal about two years from now. Employees recruited in a year’s time will qualify after about one year’s service – and so on. 

Once the change is made, it is clearly intended to be permanent. Section 108 of the Employment Rights Act 1996, which sets out the current qualifying period, is repealed. A future Government will not be able to issue regulations increasing it because there will be nothing to increase. They would need to introduce primary legislation which – as we are seeing – takes a great deal of time and effort. 

I have suggested a few times that it is wrong to refer to the abolition of the qualifying period as making unfair dismissal a ‘day-one’ right. If there is no qualifying period then employees who have been recruited and have a contract of employment but who have not yet started work could also qualify. Well, the Bill takes care of that. A new S.108A provides that an employee cannot claim unfair dismissal unless they have started work. So if you manage to dismiss an employee before they cross the office threshold on the morning of their first day then you are safe. There are the expected exceptions here for ‘automatic’ unfair dismissal where the reason for dismissal is things like union membership, whistleblowing or asserting a statutory right etc. 

More contentious is the provision for a probationary period. The Bill doesn’t actually use the word probation – but it does refer to an ‘initial period of employment’. It creates a Regulation making power that allows the Secretary of State to provide for a different standard of reasonableness to apply to dismissals that take place during that initial period. This includes situations where the employer gives notice during that period which expires up to three months after the initial period has ended. 

The duration of the initial period of employment (shall we call it the IPE?) is not set out in the Bill – that is something for the Secretary of State to specify in the Regulations themselves. The Government has indicated in its Next Steps document that it currently favours a 9 month period. In the real world six months is much more common – but many employers do allow for three month extensions to probation so I suppose 9 months is not a figure simply plucked from the air. 

Even if the dismissal does take place during the IPE it will still be possible for the employee to claim unfair dismissal. The employer will have to show that the reason for dismissal is either related to the employee’s conduct or capability, is because the employee is subject to a statutory ban (e.g. not entitled to work in the UK, or disbarred from the profession)  or is ‘some other substantial reason related to the employee’. 

Importantly, a dismissal for redundancy is not included in this list. This means that employees who are made redundant on day one can claim unfair dismissal in the same way as any other employee and the same test of fairness will apply. 

The reference to some other substantial reason (SOSR) is a little bit different from the version we see elsewhere. In a normal unfair dismissal claim the employer has to show that the reason for dismissal is “some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held” (S.98(1)(b) ERA 96). But the special rules covering the IPE will only apply if the reason is ‘related to the employee’ which suggests the something like a dismissal connected with a business reorganisation would not be covered, though a dismissal following a breakdown in working relationships would. This is obviously a deliberate choice as Regulations can specify whether or not particular reasons should be seen as relating to an employee.  There is also no suggestion that the reason in itself needs to be one that is ‘capable of justifying dismissal’ – which is usually an important part of the SOSR test. This difference might be deliberate or it might just be something that will be amended as the Bill progresses. I’m intrigued by what the Government is thinking about here. 

So how easy will it be to dismiss employees during the IPE? The Bill doesn’t say. The Regulations introduced by the Secretary of State can ‘modify’ the test of reasonableness when assessing an unfair dismissal claim. In theory they could only give a slight tweak – merely requiring the Tribunal to take the fairness of any probation period into account for example. Or they could apply a completely different reasonableness test, perhaps requiring a specific procedure to be followed but providing that a dismissal should otherwise be presumed to be fair. 

In the Next Steps document the Government says. 

As a starting point, the Government is inclined to suggest [a fair procedure] should consist of holding a meeting with the employee to explain the concerns about their performance (at which the employee could choose to be accompanied by a trade union representative or a colleague). The Government will consult extensively, including on how it interacts with Acas’ Code of Practice on Disciplinary and Grievance procedures. 

I’m still worried that the rules on probation will turn into something reminiscent of the statutory dispute resolution procedures (if you don’t know what they were, ask someone who has been in HR or employment law for 20 years and watch the corner of their eye twitch as they remember). But this is an argument for next year.

In the meantime, yes the Government is legislating to make unfair dismissal a day one right – but not for a while yet. Employers will be able to operate a probation period but we don’t yet know how long for or what they will need to do to ensure that any dismissal during that period is fair. 

That all seems nice and straightforward. Do I have to look at zero hours contracts now or can I find something else to write about first?