Unfair dismissal under the Employment Rights Bill

The publication of the Employment Rights Bill (the Bill) is just the starting point for key changes to workers’ rights, which are expected to come into force in 2026.

Clause 19 of the Bill removes the two-year qualifying period for an employee’s right not to be unfairly dismissed.

Background

On 28 February 1972, an employee’s statutory right not to be unfairly dismissed came into force.

That right has developed over the last 55 years, and the qualifying period has changed. In 1999, the qualifying period was reduced from two years to one and in 2012, it was put back up to two years.

Under the current legislation, the Government could remove the qualifying period immediately. It has chosen not to, preferring to consider and determine provisions enabling employers to operate probationary periods to assess new hires.

What will happen next?

The Government will consult on a statutory probationary period, with a preference for a nine-month probationary period.

The consultation will also consider:

• meaningful safeguards to provide stability and security for businesses and workers in the probationary period
• the interaction with the Acas Code of Practice on Disciplinary and Grievance Procedures
• the compensation regime
• the dismissal procedure

At present, it is common for employers to follow little or no process when dismissing during their probationary period. There are exceptions where there is no qualifying period or a risk of a discrimination claim.

One option could require employers to:

• hold a meeting at which the employee will have the right to be accompanied by a colleague or trade union representative
• present their concerns to the employee
• allow the employee the opportunity to respond
• make a fair decision: the basis upon which this will be judged is to be determined but could be a fairly low bar
• provide the employee with a right of appeal

Redundancy

Under the Bill, the ability to dismiss more easily during the probationary period applies to dismissals because of conduct, capability, statutory restriction and for ‘some other substantial reason’.

It does not include dismissals because of redundancy, meaning employers may be required to treat employees facing redundancy in their probationary period like longer-serving employees.

Comment

It will be some time before the removal of the qualifying period, with the Government planning to implement it no earlier than autumn 2026.

Whilst we do not know what the probationary period dismissal procedure will look like, employers can now review existing processes to ensure that formal probationary periods are in place and that performance is actively and regularly monitored during that period.

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