Unfair dismissal to become a day one right

This is a BIG deal! The significance of this change cannot be underestimated. At present a worker doesn’t have the right to bring a general unfair dismissal claim until they have two years’ service. The Bill proposes to remove this qualifying service.

It is expected that employers will be able to dismiss during an initial probation period. The proposal is to introduce a statutory cap on how long the probation period can last. Consultations will commence to determine more detail and 9 months is looking likely. Keep in mind this means if no contract has been issued with a probation period included then there will be no freedom to dismiss easily once a PA has started employment.

This issue is the first snapshot we are sharing because we cannot stress enough how ingrained the two-year qualifying rule is in the minds of employers and support teams. Very often when our ILG legal team ask, ‘how long has the PA been employed?’ rather than get an answer based on facts like 8 months or 4.5 years, the response we get is ‘they’re under two years’ or ‘they’re over two years’ referencing the qualifying period for unfair dismissal.

It stands to reason that by removing the qualifying period there will be many more dismissals which must go through a thorough dismissal process, which includes notice of reasoning, meetings and appeals. For capability (poor performance) dismissals it’s also likely an employer would be advised to go through a period of training and attempting to address the poor performance before a dismissal is considered. There will be less opportunity for issuing a simple letter, which means that anyone involved in employing PAs or supporting employers to do so, will be putting in more time to get through a dismissal process and there will be far more cases of legal advisers explaining that a dismissal would be legally unfair.

Whilst this change isn’t likely to come into force until 2026, it is crucial to start re-educating anyone involved in direct payments on the change to the law – now. Practical steps to take include:

Whenever discussing recruitment with an employer, tell them about this future change so it is in their mindset for the future.

• Make sure all employers are in the habit of issuing contracts by day one of employment – no contract means no probation period and no quick dismissals.
• Discuss the benefits of good probation period management and encourage employers to get into good habits, making the most of this trial period.
• Focus on recruiting well, get criminal record checks, references and evidence of necessary qualifications before employment starts.
• Spread the word to any professional working in and around direct payments – budgets need to always remain sufficient to allow an employer chance to get through full and fair dismissal procedures once the probation period is over. Suddenly pulling a budget, for any reason, is likely to put an employer at risk of breaching the law and facing financial penalties.
• Make sure all individual employers are aware of how crucial it is to speak to the legal helpline provided by their employers liability insurer before dismissing a worker. When employers don’t take advice prior to dismissal they risk the insurer refusing a claim for legal expenses. Not only can legal helplines support to prevent a legal wrong from occurring in the first place, but they can also secure the best possible position for an employer should a legal claim arise.