For UK employment lawyers, these few weeks at the end of the Summer and the beginning of Autumn are the calm before the storm. Labour has promised an Employment Bill within 100 days of taking office. It has trailed much of its contents in its manifesto and in the King’s Speech. We know we’re going to have a lot of work to do working out what it all means for our clients. And yet, there is an awful lot we don’t yet know. Just how are they going to do some of this stuff?
A good example of the gap between rhetoric and legislation, between poetry and prose if you will, is in relation to so-called ‘Day one rights’. This is a powerful rallying cry – full protection from the moment you walk in the door! – but in practice means the rather more prosaic removal of the qualifying period In respect to the right not to be unfairly dismissed.
When business woke up to the fact that Labour was likely to win power, there appears to have been much lobbying along the lines of ‘we must still be able to have probationary periods’. Labour quickly relented and have said that these may still be retained.
But how?
It would have been so much simpler, but far less dramatic and powerful in political terms, to say that the period of qualifying service should be reduced from its current two years to, say, three months. That would be the shortest it’s ever been. That has always been a qualifying period of service ever since the legislation was introduced in the late 1960s.
To all intents and purposes, that would have been likely to have had the same practical effect as whatever Labour is proposing to do in respect of probationary periods. Clearly, it must be easier to dismiss employees during or at the end of such a period, otherwise there is no point at all in having them. At the moment, employees can be dismissed for any reason before two years is up so long as dismissal does not contravene the equality legislation. The right not to suffer unlawful discrimination has always applied from day one.
However, “Rights at Three Months!” is clearly not as dramatic as “Rights on Day One!”. So if Labour have decided for rhetorical reasons not to take easiest route to achieve their objective, what might they do?
I think perhaps the simplest way is to amend section 98 (4) of the Employment Rights Act 1996. This is of course the bit that goes to whether a dismissal is “fair”.
Section 98 (4) (a) currently reads that after that the employer has identified to the potentially fair reason for dismissal then:
“… whether the dismissal is fair or unfair (having regard to the reason shown by the employer)
(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee…“
In these dog days, I am fantasising myself as a Parliamentary draughtsman and in that dream-like and blissful state would suggest amending this provision so it reads:
“depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking or whether the employee was dismissed during or at the conclusion of a reasonable probationary period) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee…“
This would be accompanied and given substance by an ACAS Code of Practice addressing what is a “reasonable probationary period“. I would expect that Code to take into account the nature of the employment and a mechanism whereby an employee was given clear reasons as to why they had not passed, with perhaps an opportunity to challenge them. This mechanism would be explicitly much simpler and less comprehensive than the existing ACAS provisions in relation to termination for misconduct, for example, but should still provide a modicum of protection against arbitrary termination. It would also justify Labour not having taken the easy route, as it gives a bit more to employees, albeit imposing quite a lot more on employers.
So, what do people think? Whilst we’re waiting, anyone got any better ideas?
About the author(s)
Jonathan Chamberlain leads for the Technology Sector in Gowling WLG's UK Employment, Labour & Equalities Team. He is a member and past Chair of the Legislative & Policy Committee of the Employment Lawyers' Association, but blogs in a personal capacity.
Jonathan Chamberlain
Jonathan Chamberlain leads for the Technology Sector in Gowling WLG's UK Employment, Labour & Equalities Team. He is a member and past Chair of the Legislative & Policy Committee of the Employment Lawyers' Association, but blogs in a personal capacity.