Blog

Preparing for change | How a Labour government could impact employment law

As the next General Election on 4 July approaches, speculation is rife among HR professionals. It is widely anticipated that we may see a Labour government for the first time in 14 years.

The prospect of a Day One right to claim unfair dismissal

Labour has pledged to strengthen worker rights from their first day in power. One of the reforms being discussed is a Day One right to claim unfair dismissal which may be cause for concern for some employers. Currently, dismissing an employee within the first two years is often more straightforward and lower risk since the employee cannot bring an unfair dismissal claim.

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.

Do you need support?

Speak to us for an honest, no obligation chat on:

0345 226 8393    Lines are open 9am – 5pm

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 other avenues, such as discrimination or whistleblowing claims, where no qualifying period exists.

Case study: Atwell v Taylor Haldane Barlex LLP

In the case  Atwell V Taylor Haldane Barlex LLP ET3310231/22 , Miss Atwell began work as a paralegal in October 2021. Early on, it was identified that she was  struggling to get up to speed with her job. The Respondent says she was given 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. It got to the point where 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 the Claimant.’

The Respondent  knew of the two-year qualifying period for unfair dismissal and, not wanting to fall foul of the law, stated they wanted to do everything by the book and make sure  if matters come to an end, the Claimant was paid correctly. The Claimant was dismissed in February 2022.

The Claimant brought claims for discrimination and whistleblowing, which lead to a 10-day hearing.

All claims failed, and the Tribunal found that  the reason for terminating her  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. They found the Respondent’s oral evidence ‘clear, consistent and compelling’. They found the Respondent had contemporaneous evidence where concerns had been expressed about the Claimant’s performance. There was evidence that the Claimant had been spoken to regularly about the performance concerns.

What if the qualifying period is removed?

We will never know if the Claimant had the opportunity to bring an unfair dismissal claim whether she would have done so instead of raising claims that can be brought as a Day One right.

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?

Take away points for HR

1

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.

2

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. 

3

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. 

Need support?

At WorkNest, our employment law experts are here to help you navigate any changes to legislation. Our unlimited, fixed-fee service includes unlimited, commercial advice on all your employment challenges plus bespoke policy creation ensuring you’re aware of and prepared for any legal updates that might impact how you operate.

For advice and support, call us on 0345 226 8393 or request your free consultation using the button below.

Find what you were looking for?

Our FREE resources library contains over 200 searchable blogs, guides and templates focused around Employment Law and Health & Safety issues that employers face on a day-to-day basis.

Get your FREE download

We combine the service quality of a law firm with the certainty of fixed-fee services to provide expert, solutions-focused Employment LawHR and Health & Safety support tailored to employers.

Call us on 0345 226 8393.

Get your FREE download

We combine the service quality of a law firm with the certainty of fixed-fee services to provide expert, solutions-focused Employment LawHR and Health & Safety support tailored to employers.

Call us on 0345 226 8393.

Get your FREE consultation

Submit your details and one of our team will be in touch.

Search...

Get your FREE consultation

Submit your details and one of our team will be in touch.

Get your FREE consultation

Submit your details and one of our team will be in touch.

Before you go…

We can help with that HR problem or health and safety query. If you’re an employer, leave your details below and our team will call you back.

Register your interest

Submit your details and one of our team will be in touch.

Get your FREE consultation

Submit your details and one of our team will be in touch.

Download your FREE guide

Submit your details below.

Request a callback

Submit your details and one of our team will be in touch.

Need some help?

Call our team now on:

0345 226 8393

Request a Callback

Submit your details and one of our team will be in touch.

Request a Callback
Hi, how can we help?
Click the button below to chat to an expert.

Get your FREE consultation

Submit your details and one of our team will be in touch.