Day one unfair dismissal scrapped: is it time to breathe again?

… Well not really! Following a couple of months of parliamentary ping-pong (where a Bill bounces back and forth between the Commons and the Lords), the Government ultimately shifted its position.

It accepted pressure from the House of Lords that ordinary unfair dismissal claims need at least six months’ employment. With that hurdle jumped, the Employment Rights Act became law and is now in phased implementation.

Today, I’m looking solely at the hidden impact of ordinary unfair dismissal after six months’ employment.

But don’t forget there are already plenty of existing ‘day one’ unfair dismissal rights that are not ‘ordinary,’ including pregnancy, maternity, asserting a statutory right, discrimination, etc.

The right to claim unfair dismissal has existed for over fifty years. Eligibility has varied over the decades but was never a ‘day one’ right. It was set at six months back in 1974 and, for the last ten years or so, it’s been two years. We’re all used to the concept of ‘short service dismissal’ in the first two years of employment. This made it easier to dismiss – even if someone had somehow successfully navigated probation.

Beware of the changes!

The six-month provision is now destined to take effect from 1 January 2027. This is a change; it was going to be 26 October 2026.

But it doesn’t only apply to new starters, it affects existing employees, too. Hence, someone you recruit today, with two year short-service provisions still in place, benefits from the new six-month rule as the ‘bongs’ of Big Ben herald in the New Year.

Probation in practice

So, what does all this mean? Firstly, it means you need a short, effective period of probation. Three months, or possibly four, will sensibly become the norm. You may think about an even shorter period for limited duration engagements, such as maternity cover.

Allow time for short ‘second chance’ extensions, holidays, sickness periods, etc. Remember, if they look like they may fail, you must complete the entire probation process before the magic six months kicks in.  Build in sufficient time for extensions, final review meeting, notice and termination, within that six-month window. Review your notice period during probation. Is it set to one week?

Otherwise, you’ll need a full capability (or possibly disciplinary) process. And, of course, the risk of an unfair dismissal claim.

Probation needs effective monitoring by well briefed line managers. No more passing probation by default! You’ll need up-to-date, relevant, non-contractual, job descriptions. Regular probation reviews are an imperative. And a process by which managers place struggling probationers quickly into short, effective, performance improvement measures.

Reviews must be consistent and objectively determined. Measure everyone against similar performance indicators. Sensibly include quality/accuracy of work,  meeting targets/objectives, attendance, timekeeping, teamwork, interpersonal and communication skills.

Make probation reviews feel less like guesswork

If you’re an HR Services customer, you can request our model probation review process and tweak it to suit your organisation. See what’s included with Moorepay HR Services here.

The importance of an effective induction

And what about effective induction? Too often it’s just “here’s your desk, this is your manager, there’s the loo, kitchen, fire escape…” etc. Cursory induction sacrifices so many valuable opportunities.

Good induction starts well before the new starter’s first day. It might initially embrace details of the organisation’s history, values, current priorities, etc.

Yes, it then necessarily covers housekeeping issues. But it’s also a valuable opportunity to share key policies and procedures such as equality, diversity, and inclusion, bullying, harassment, and sexual harassment. Holiday and sickness procedures can be explained. Health and safety considerations such as dress codes, personal protective equipment, accident reporting, etc. can all be set out.

Effective induction programmes are a detailed collaboration between line manager and new recruit. Nowadays, they also need to cover constantly developing themes. Cyber security, social networking, banter, data protection, the impact of artificial intelligence, etc. Are your managers well briefed? Are you? Effective induction continues some weeks and allows time for review and reinforcement. As a bonus, it demonstrates your adoption of proactive employment policies, an ever-increasing legal obligation for employers.

Set new starters up properly from day one

Moorepay HR Services customers can request our 60-point model induction process, giving you a structured checklist you can tailor to fit your organisation. Learn more about our services here.

Consultancy support

If you find the prospect of on-boarding new starters, objective and consistent probation, sustained inductions, or even management training daunting, Moorepay can help.

We can assist you to establish the best probation provisions for your organisation. We can support you with a tailored induction process. And familiarise line managers so they understand the importance of consistent, objectively determined, probation criteria and reviews. And we can hammer home the importance of that six-month window!

Plan now for the future

Ordinary unfair dismissal provisions after six months’ employment are effective from 1 January 2027. But potentially, they embrace current staff – those you’re onboarding right now under ‘two-year short service’ provisions. That date potentially catches every new hire over the previous two years.

It’s time to review those still in the first two years of employment, especially if they passed probation by default, but may still be struggling.

Now’s the time to assess what will work best for you

If you would like a copy of the model templates I’ve mentioned (Moorepay HR clients only), or value consultancy support, please contact policy.team@moorepay.co.uk or telephone 0345 073 0240 (then select option 3).