The House of Lords has voted to remove the proposed day one protection from unfair dismissal in the Employment Rights Bill. Instead, they back a qualifying period of six months, rather than the current qualifying period of two years.
This marks a significant moment in the bill’s journey. However, once the bill returns to the House of Commons, where the government holds a majority, the House of Lords’ amendment may be rejected. This means that the government could press ahead with unfair dismissal becoming a day one right. This is a major change and a significant reduction from the current two-year qualifying period of employment, which is required for an employee to bring an unfair dismissal claim.
For employees, a day-one right or six-month qualifying period represents a substantial expansion of rights compared with the current two-year threshold. For employers, the change increases the risk for unfair dismissal claims much earlier in the employment relationship. A shorter qualifying period means less flexibility for employers to let go of underperforming staff.
The bill will allow for an employer to dismiss an employee at the end of their probation period but yet, there is little clarity around what this dismissal procedure will look like. Employers will need to demonstrate clear and consistent procedures from the outset, even for short-service employees. For employers with lean HR teams, this could be particularly challenging.
Regardless of whether the final law introduces a six-month period or a day-one right for unfair dismissal, the direction of travel is clear: unfair dismissal protections are set to arrive far sooner in an employee’s tenure. This will require a shift in how organisations approach recruitment, probation and performance management. Employers should now be reviewing employment contracts to ensure they contain clear probation clauses, training managers on how to handle performance issues and dismissals in line with fair processes, and strengthening onboarding to ensure new hires are set up for success early, reducing the risk of disputes later.
A shorter qualifying period also makes accurate recruitment decisions more important than ever. Investing in thorough hiring processes, realistic job previews and regular check-ins during probation can help reduce the likelihood of early disputes.
Whether the Commons accepts the Lords’ amendment or pushes ahead with day one rights, the shift will fundamentally change how employers manage their workforce. Those who prepare early, embedding fair processes into every stage of the employee journey, will be best placed to navigate the change while maintaining strong employee relations.
Claire Cole is a senior employment solicitor at Harper James
