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Preparing for change | Labour’s plans to make unfair dismissal a day one right
Following Labour’s landslide election win, the UK has a new government and a new prime minister in Keir Starmer. Having promised “the biggest upgrade to rights at work in a generation”, we could be on course for potentially significant changes to employment law, including immediate protection against unfair dismissal.
The prospect of a day one right to claim unfair dismissal
The Labour Party has pledged to strengthen worker rights from its first day in power. One of the key reforms being discussed is a day one right to claim unfair dismissal, which may be cause for concern for some employers.
Currently, employees can only usually claim unfair dismissal against their employer if they have a minimum of two years’ service. As such, dismissing an employee within the first two years of employment is often more straightforward and lower risk.
If this requirement is abolished, will the Tribunal system cope? Concerns have been raised that removing the qualifying period could lead to an increase in Employment Tribunal claims, exacerbating an already stretched and delay-prone system.
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Is a day one right really a bad thing for employers?
Unfair dismissal claims typically last one or two days in the Tribunal and are often conducted via video conferencing. In contrast, discrimination and whistleblowing claims can take many days and require in-person hearings.
When a disgruntled ex-employee cannot claim unfair dismissal due to having less than two years’ service, they may seek out other avenues, such as discrimination or whistleblowing claims, since these do not require a qualifying period of employment.
Case study: Atwell v Taylor Haldane Barlex LLP
In the case of Atwell V Taylor Haldane Barlex, the Claimant, Miss Atwell, began work as a paralegal in October 2021. It was identified early on that she was struggling to get up to speed with her job.
According to her employer, Miss Atwell was given ample time and support to improve, but she continued to struggle. She had performance reviews, where it was noted that she had not completed certain work on certain files. Eventually, her supervisor felt it was time to call it a day. In the supervisor’s oral evidence, she informed the Tribunal that she felt like she had been “flogging a dead horse” and that she had given her all and gone beyond all reasonable efforts with Miss Atwell.
The employer knew of the two-year qualifying period for unfair dismissal and, not wanting to fall foul of the law, stated that it wanted to do everything by the book and make sure that if matters did come to an end, Miss Atwell was paid correctly.
Miss Atwell was dismissed in February 2022. Unable to bring an unfair dismissal claim due to having less than two years’ service, she brought claims for discrimination and whistleblowing instead. This led to a 10-day hearing.
All claims failed, and the Tribunal found that the reason for terminating Miss Atwell’s employment was due solely to the perceived performance issues and nothing whatsoever to do with any protected disclosures.
The Tribunal was able to come to this decision based on the evidence. It found that the employer’s oral evidence was “clear, consistent and compelling” and that it had contemporaneous evidence where concerns had been expressed about Miss Atwell’s performance. There was evidence that Miss Atwell had been spoken to regularly about the performance concerns.
The question is, if the qualifying period is removed, what may happen in cases such as this? We will never know whether, had she had the opportunity to bring an unfair dismissal claim, Miss Atwell would have chosen that route instead of pursuing claims that can be brought from day one.
What do you think about removing the qualifying period for unfair dismissal? Will it lead to more claims, or will it allow Claimants to bring the cases they truly want to bring rather than forcing them to fit their situation into other legal avenues?
Key takeaways for HR
Having a clear probationary policy is crucial. Probationary periods provide a structured timeframe for both the employer and the employee to assess suitability for the role, and help manage expectations from the outset. Regular reviews and constructive feedback throughout the probationary period are essential, allowing employers to address any performance issues promptly and support the employee’s development. This approach not only aids in making informed decisions about the employee’s future with the company but also demonstrates the employer’s commitment to their success by offering necessary training and support.
Keeping clear contemporaneous notes is essential. This will serve as an accurate record of performance discussions, issues raised, and any support provided to the employee. These notes form a robust foundation for decisions related to performance management and are crucial in defending against claims. Best practice includes maintaining detailed records of all performance reviews, feedback sessions, and discussions regarding an employee’s performance.
If you are ever in a situation where you need to defend a claim, evidence is absolutely critical. In any legal dispute, particularly in Employment Tribunals, evidence plays a pivotal role in substantiating the employer’s actions and decisions. Robust evidence can effectively counter claims and demonstrate that actions taken were fair, reasonable, and in compliance with legal requirements.
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