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A poll by WorkNest indicates that 36% of employers are planning to make changes to their probation periods in response to employees gaining day one unfair dismissal rights. What is the relevance of probation periods here?

If enacted, the Employment Rights Bill will remove the current two-year qualifying period of employment for ordinary unfair dismissal claims, making the right to claim unfair dismissal a day one right. However, the Bill goes on to provide that where the dismissal takes place during an “initial period of employment”, or notice is given during the initial period and the effective date of termination falls within three months of the end of the initial period, and the reason for dismissal is conduct, capability, illegality or some other substantial reason (but not redundancy), then regulations may provide for a modified dismissal process to apply.

Regulations will also specify what the initial period of employment is. The government had said that its current preference is for this initial period to be nine months, and it has also said that a modified dismissal process here could consist of simply holding a meeting with the employee to explain the concerns about their performance, etc., at which they could choose to be accompanied by a work colleague or trade union rep. These provisions will be the subject of consultation in 2025 and, if enacted, the government has said they will take effect no earlier than autumn 2026.

The initial period of employment would be akin to a statutory probation period, as the legislation would effectively allow you to use this period to assess new hires and then, if necessary, implement a lighter touch process to dismiss them. The provisions would not stop you operating contractual probation periods, but these would be subject to the statutory provisions. So, it seems likely that many employers will amend their probation periods to reflect the new statutory provisions when they take effect, such as by increasing them to nine months if that is confirmed as the initial period of employment. Not only that, having robust probation processes in place to assess new hires will become even more important once the new law takes effect as, if challenged, you would presumably still need to be able to prove that the dismissal of the new hire was due to their conduct, capability, etc.

Therefore, line managers will need to be equipped to deal with misconduct and poor performance issues during probation periods. Start to get into good habits now by ensuring new hires are aware of what is expected of them, setting up regular probation review meetings with them, documenting conduct or performance concerns, etc.