Right to claim unfair dismissal from day one

As anticipated, Schedule 2 of the Employment Bill provides that employees will have a day one right to claim ordinary unfair dismissal where they have been dismissed for an unfair reason or unreasonably dismissed for one of the five fair reasons: misconduct, incapacity on grounds of incompetence or ill health, redundancy, for breach of a statutory duty (such as not holding a driving licence which is required to do the job) or for some other substantial reason (such as a business reorganisation or a breakdown in the working relationship).

The right is to be modified by way of regulations for those employees who are in their probationary period, which the Bill refers to as the “initial period of employment.”

The right to claim unfair dismissal from day one in employment applies to employees only. The government proposes to introduce a statutory probationary period by way of regulations that will set how long the probationary period is and how the day one right to claim unfair dismissal from day one will apply to them. Employees will also be entitled to make a request for written reasons for dismissal under section 92 of the Employment Rights Act from day one of employment.

The right does not apply to workers, i.e. those engaged on a contract to personally provide their services but who do not have a contract of employment and are not self-employed. Nor does it apply to employees who have accepted a contract of employment but whose employment has been terminated before they started, for example, when the contract has been withdrawn.

Importantly, the right not to be unfairly dismissed is achieved by repealing s. 108 of the Employment Rights Act 1996. This means that it is likely to be harder for a future Government to change the qualifying period since this would require amending the Employment Rights Act 1996. The big question is when will the day one right apply? The answer can be found in the government ‘Next Steps’ document, which sets out that the Employment Rights Bill will provide the legislative framework by which the day-one rights, including protection from unfair dismissal and the statutory probationary periods, will be implemented.

Following consultation, the government anticipates that “Reforms of unfair dismissal will not come into effect until autumn 2026.” While it’s important to get such big reforms right, it will be important to ensure that the long lead-in period is not used to undermine the benefits of these much-needed reforms.