I can understand why the media and the world of work are waiting with baited breath for Labour’s Employment Bill which will purport to give day one employment rights to all working people in the UK. As is often the case with changes to employment law and without wishing to be disparaging to the media, these things rarely get reported sensibly or correctly. For sure there are some key changes on the horizon but what does not get reported is what the current state of the law is.
To be clear all employees and workers (the law makes a distinction) are entitled to day one rights for protection against discrimination as the law stands today. If you are discriminated against because of a protected characteristic you have potential Employment Tribunal claims from day one, in fact from even before day 1, because applicants for employment are also protected.
If you blow the whistle on day one of work – I once had a case for an employee who had been in post for a week – you have the right not to be dismissed because you are a whistleblower. There are a number of other situations where day one rights apply, for example if you are dismissed for joining a trade union.
What the day one rights that are in the spotlight right now are about is the statutory right not to be unfairly dismissed. Currently an employee has to have worked for two years to have access to this right. Previous periods of service were lower: I thought when the qualifying service period was one year that was the right balance.
Two years is too long, but one day is too short. There is a very real chance that introducing day one unfair dismissal rights will deter companies from hiring. It’s hard enough to hire as it is regardless of how rigorous your recruitment processes are. You never know what you are going to get until the employee starts the job and shows you what they have got. Introducing day one rights is just going to make life harder for employers and being an employer is not the most joyful of joys at the best of times.
Thinking about employees, what do you really gain with a day one right not to be unfairly dismissed if employers are still able to use probation periods, which I understand is a feature of Labour’s bill? Probation periods are vital to the assessment of suitability for a position and for assessing fit. They are as vital to employees as they are to employers. With this change the Labour Government proposes that employers will still be able to dismiss without unfair dismissal risk if they use probation periods correctly but they must advise the employee in writing about why they are being let go.
From an employer’s point of view this means that the next time I hire and fire a new employee I am going to have to spell out in detail why they fall short. I do not relish this task. It’s hard enough as it is to fire someone but now I will have to be explicit about their shortcomings which make it an even more unpleasant and awkward issue on both sides. Who benefits here?
I entirely agree that two year probation periods are excessive and unfair. You know very quickly when hiring if someone is up to the job, whether and what training and coaching they need, whether they will get to where they need to or not. I am often able to make a swift assessment taking into account skills but also fit, aptitude and attitude. You get best behaviours in interview: you get warts and all in the workplace. To keep them under review for two years is, I agree, a bit much. But why then didn’t the Labour Government just introduce a day 180 right and not a day one right? Or revert to one year periods of service. This would strike the right balance between the competing interests of employers who need people who can perform the work and employees who merit protection from exploitation.
I’m impressed and encouraged that Labour want to Make Work Pay but they need to remember that it has to pay for employers as well as workers and employees otherwise there will be no jobs to work at all. Balance. It’s all about the right balance.
This blog was written by Karen Jackson Founder & MD of didlaw, an employment law boutique in London and an employer.
