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A. The law on this hasn’t changed yet.
The government are proposing that all employees are given protection from unfair dismissal from their first day of employment, however they have not released any further details as to how this will work in practice.
Currently, employees can be dismissed within a two-year window before they can claim ‘unfair dismissal’, with the exception of employees who possess a protected characteristic. Protected employees should always be managed more cautiously.
To do this, make sure you have followed your contractual off boarding process and considered if their protect characteristic has created additional barriers for them, if so, employers are expected to make reasonable adjustments.
For employees who do not possess a protected characteristic the offboarding process can be much quicker and much less risky within the two-year service window, but once that window has passed, those employees should be offboarded via the full contractual process.
For example, if it is an under-performance issue post two-year service, the employee would be placed on a process improvement plan (PIP) and then managed out of the business via that route.
If or when this law does go live, it is likely probation periods will still have a place in the process. Probation periods are a widely used tool but there is no legal requirement to utilise them, yet. If the government does establish a mandatory probation period, preparedness is key.
Your client may already have an established probation process, in which case they can continue to use this as they always have but if this is the first time your client is looking to implement a probationary period, I will outline a commonly used framework for your client.
Currently most probation periods are six months with the option of an extension if the employee has not yet demonstrated their suitability. The best practice probation process will include regular catch ups about the employee’s progress and a training programme or shadow process to ensure the employee is fully equipped to succeed in their new role. If a gap in their knowledge or skill is identified, this is the time to plug it.
Probation periods are a great way to monitor absences and reiterate attendance expectations. If concerns about the employee does arise these should be addressed, as issues identified during a probation period will often escalate if left unaddressed.
Whether your client decides to pass, fail or extend a probation, a probationary meeting should occur, and following this a formal outcome letter issued to the employee.
It is not just probationary periods that may become mandatory, the government have recently released their Employment Rights Bill, which will certainly affect employers moving forward.
The bill includes things like, making flexible working the default and ending fire and rehire practices. Day one rights for paternity, parental and bereavement leave. Changing Statutory sick pay so its available from the first day of absence and repealing the anti-union legislation put in place by the previous administration.
It doesn’t stop there, the government have proposed more changes and promised further reform to come.
The government will continue to make changes for the foreseeable future and a business’s preparedness for these changes will go a long way in softening the proverbial blow.
