With Labour in power for the first time in 14 years, there will undoubtedly be significant changes ahead for employment law. 

The prospect of a Day One right to claim unfair dismissal

Labour has pledged to strengthen workers’ rights from day one in power, including a day one right to claim unfair dismissal. Most HR professionals know that it is often more straightforward and lower risk to dismiss an employee within the first two years of employment, since the employee does not have the qualifying service to bring a claim for unfair dismissal. Consequently, the prospect of the qualifying service requirement being removed may be cause for some concerns.

Impact on the Tribunal system

Moreover, if it is removed, will the Tribunal system cope? There have been concerns raised that if the qualifying period is removed, it will lead to more Employment Tribunals claims in an already stretched and delay-ridden system.

Is a day one right really a bad thing for employers?

Unfair dismissal claims are usually listed for one or two days in the Tribunal and these days typically listed to be via CVP. However, discrimination and whistle blowing claims are often listed for many days and need to be heard in person.

What often happens when you have a disgruntled ex-employee who cannot bring a claim for unfair dismissal because they have less than two years’ service, is that they will look for other avenues where they can bring a claim where the qualifying period does not exist.

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 open the floodgates to more claims, or will it mean that Claimants can bring the cases they want to bring rather than shoehorning the situation it something it’s not?

Take away points for HR

• • This shows the importance of a clear probationary policy
  • The importance of keeping clear contemporaneous notes
  • The importance of evidence if you are ever in a situation where you need to defend a claim.

If you need any help on these issues,  please get in touch with our team.