The Employment Rights Bill is currently making its way through the House of Lords. This Bill, introduced by the Labour government, was promised in their election campaign. The headline part of this Bill was the promise to remove the two year qualifying service for unfair and constructive dismissal claims. The proposal was to make this a day one right. This would be a major change in employment law and is due to come into force in 2027.
It had been proposed that the new legislation would contain provisions to create statutory probationary periods. This would mean that dismissals could still take place in that time and a full process would not need to be followed. It was suggested that this period could last for nine months.
The House of Lords has voted to dispose of the initial probationary period calling this “confused and counterproductive”. They have also changed the qualifying period to six months rather than two years. Their reasoning for this is that it is simpler, and the existing legal structures could remain in place. It also achieves the aim of providing workers with legal rights and protections sooner. Lord Sharpe of Epsom, who introduced this change, stated this would “strike a fair balance” and allow employers “space to assess suitability while ensuring that bad-faith dismissals still carry consequences”.
This amendment means that the Bill will go back to the House of Commons. It is likely that this amendment will not be accepted as the government will not want to be seen to be making a U-turn on a key election pledge. It will then return to the House of Lords who will be able to decide whether to accept the Bill as is or continue to argue for the change. It is likely that they will not continue to argue this point as it is a constitutional convention that the House of Lords will not obstruct the government from putting legislation in place in relation to manifesto promises.
For employers, it is difficult to prepare for changes when there is little clarity about what this would involve. Regardless of the specifics, it is clear that employers will need to review their recruitment processes, probation period processes and make sure there are regularly held catch ups with new employees.
If you have any questions on any of the issues raised in this article, please contact Alan Sutherland.