Day-one Rights: The unanswered Question of When

Employment law expert Dan Pollard writes that the timing of the new law’s implementation is one aspect of the ministers’ promise to include day-one rights in the Employment Rights Bill.

Employers will likely increase their dismissals in the next few months to avoid the new day-one rights.

Labour has promised to guarantee “day-one rights” for all workers, which would eliminate the requirement that employees have to serve two years to be protected against unfair dismissal. The coalition government increased this qualifying period from one to a minimum of two years in 2012.

Employers must provide a valid reason for dismissing an employee after two years of service. Redundancy, poor performance, and illness are all acceptable reasons. The employer must also follow procedures which may seem simple but can be time-consuming and difficult to implement in reality.

The changes are expected to be included in a new Employment Rights Bill. Employers will also be able include a trial period, although the exact details of this have not been revealed.

The biggest question that remains unanswered is whether or not all employees will enjoy their day-one rights, or if these will only be applicable to those hired once the Employment Rights Bill has become law.

The majority of employers and attorneys assume that they will be applied to all employees instantly, meaning around a third will gain their rights over night likely later this year.

There have been cases in which employees were dismissed without any formal process. This was almost certainly done to prevent them from gaining rights if laws changed. Previously, there would have always been an open discussion regarding a peaceful departure prior to termination.

The government wants to increase job security, but the immediate effect may be for employers to seek mass layoffs to remove poor performers and reduce the risk of a claim. We expect a rise in complex litigation in the coming months, as employees are left with no other recourse than to seek protections for discrimination and whistleblowers.

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