Abolition of the two year period: should you be afraid?
It’s very likely that you will have read the headlines about the government’s introduction of a day one right for employees to make a claim for unfair dismissal, and we expect that you’ve received a number of marketing emails encouraging you to take action now.
This blog is about why it’s too early to panic!
This isn’t the first time that the qualifying period for unfair dismissal has changed. When the right not to be unfairly dismissed was first introduced in 1971, the qualifying period was two years. Since then, it has gone down to 6 months, up to one year, before increasing again to two years in 2012.
This is the first time in the 30 years we’ve been in business that the qualifying period has been abolished entirely.
The government had a choice to regulate the change to the qualifying period which is how it has been changed in the past. Instead, the recently published Employment Rights Bill will repeal the concept of a qualifying period altogether, making it more difficult for a subsequent government to reinstate it.
Is this going to happen soon?
No. The Next Steps document produced by the government to explain the Bill states that the abolition of the qualifying period will not come into effect any sooner than autumn 2026 which is why we are saying to our clients that you don’t need to panic.
In effect, there will be a rundown period between now and it coming into force, where any new employee will have a decreasing period of time to work before they acquire the right not to be unfairly dismissed.
Does this mean that we will need to follow a full dismissal process from day one?
Not necessarily. Although the Bill repeals the qualifying period, it also allows for an initial employment period during which employment can be terminated using a lighter touch process so that employers can dismiss an employee who is not right for the job.
How long is the initial employment period?
At the moment we don’t know for sure, as this is going to go out for consultation. However, the government’s next steps document states that the government’s preference is for a period of 9 months.
Is the initial employment period the same as a contractual probationary period?
No. Your contractual probationary period is not the same as the initial employment period. The initial employment period will apply automatically to all employees.
If there is an initial employment period, why use a contractual probationary period?
You will still be able to retain a contractual probationary which does not need to be the same length as the initial employment period. The contractual probationary period can still be used, for example, to delay access to benefits and provide a shorter notice period.
Do we know what the lighter touch process will be?
No. This is going to go out for consultation. At the moment, the government is suggesting holding a meeting with the employee to explain the concerns about their performance and allowing the employee to be accompanied at the meeting by a colleague or trade union representative. It does not currently suggest that the employee will have a right of reply. This may change.
Can we follow the lighter touch process for any dismissal in the initial employment period?
No. The lighter touch process is only to be used when the reason for the dismissal is personal to the employee’s performance or conduct.
This means that if your new employee is caught up in a redundancy or reorganisation exercise, you will need to consult with them in the same way as everyone else.
What happens if I get the procedure wrong during the initial employment period?
The employee will be awarded compensation if they bring a successful claim in the employment tribunals.
However, the government is going to consult on what the compensation regime will be for successful claims during the initial period of employment, with consideration given to tribunals not being able to award the full compensatory damages currently available.
Is there anything that employers should be doing now?
Until the qualifying period is repealed, an employee within the two-year period needs to be more than unfairly dismissed to have access to the tribunals. The most common day one rights are currently discrimination and whistleblowing. Lured by a false sense of security, many employers find themselves with very little in their files to defend themselves against a disgruntled employee raising a weak claim of discrimination or whistleblowing.
The best advice is to apply the light touch procedure to all dismissals as of now, See our previous blog.
If you have any questions or concerns regarding this, or any aspect of employment law, please get in touch and we will be happy to discuss.
For more specific information or to discuss your requirements please call either Amanda Galashan or Julie Calleux at Employease on 03339398741 or email us at info@employease.co.uk. This note does not constitute legal advice on any particular situation you may have.
Copyright: Employease 2024
