What will unfair dismissal as a day one right mean for the food and drink sector?

Labour’s much anticipated Employment Rights Bill has been published and is making its way through Parliament, with some of the details out for consultation.

The Bill will remove the qualifying period for unfair dismissal altogether and replace it with protection for employees from day one of their employment.

The current law surrounding unfair dismissal only applies to employees who have at least two years’ continuous service.  A qualifying period has always existed to give employers an initial period to assess a new employee’s suitability for the role, although its length has varied in the past.

This is a radical change and will require employers, including those in the food and drink sector, to reconsider their approach to recruitment, induction and probationary periods, as well as dismissals.

Employers should review their approach to recruitment.  The potential consequences of hiring new employees who turn out not to be the right fit for the job will be much higher without the qualifying period.  Dismissing someone with short service will now require the employer to establish that it had a fair reason for dismissal and followed a fair procedure.

So better hiring decisions will need to be made, which is easier said than done in the food and drink sector, where recruitment continues to be challenging.

Will there be an initial period where a modified version of the right to unfair dismissal will apply?

There is some relief for employers though.  There will be an initial period of employment, during which a modified version of the right to unfair dismissal will apply.  The length of this initial period is yet to be finalised, but is expected to be between six and nine months.

During this initial period of employment a “light touch” dismissal procedure will be required to be followed.  The precise details are yet to be determined.

The key point for employers is that having probationary periods and actively keeping on top of them will be crucial if this initial “light touch” dismissal procedure is going to be used where the recruitment is not up to scratch.

Will the day one right to unfair dismissal apply to all staff?

Lastly, individuals engaged as workers, such as casual staff and zero hours workers, will still not be covered by unfair dismissal laws.  Meaning that they can still be let go of without the need to follow a fair dismissal process and establish a fair reason.

But challenges to the status of staff classified as workers, that they are deemed to have employee status and so have unfair dismissal protection, will increase as the stakes will be higher where those staff no longer also need to show two years’ continuous employment.

The sector heavily relies on such casual staff.  Employers should consider the documentation and working in arrangements in place with casual staff to ensure that any challenge that they should be classified as employees rather than workers can be defended.

The Government says that the Bill will not come into force until 2026, so employers have some time to start considering these issues and preparing for the new rules.

If you have any questions about the topics raised in this article, please get in touch.

Ben Stepney is a Partner in the Employment Team at Thomson Snell & Passmore LLP