The practical details on proposals for employment legislation reform under Labour’s plan within the first 100 days of the new government has yet to be clearly defined, and the reason may be that much of the detail is still to be agreed upon within Whitehall.
“Intense” Conversations
The recent discussions between Deputy Prime Minister Angela Rayner and Business Secretary Jonathan Reynolds regarding probationary periods are a case in point.
Angela Rayner has been a vocal advocate for Day One rights for workers following a short probation period and this remains her position. Jonathan Reynolds however is cognisant of the views of many businesses that Day One rights and a short probationary period could lead to a swift increase in tribunal claims for unfair dismissal which are costly to businesses, both in terms of time and money. As such the Business Secretary is pushing for a minimum nine-month probationary period.
Both ministers have met with business leaders and unions to clarify the scope of the proposed employment legislation reforms under Labour’s plan. As the government remains determined to push through the reforms within the self-imposed 100 day deadline, compromise on probationary periods looks set to be an urgent and heated topic for discussion.
As we wait on the outcome of the ministers’ discussions, all employers should be reviewing their own approach to recruitment, onboarding and probationary periods in anticipation of any announcement made by the government regarding the proposed duration of probationary periods.
Fairness and Transparency in Probationary Periods
The government has advised that whilst they are seeking to introduce Day One rights to enable employees to bring an unfair dismissal claim from the first day of employment, a fair dismissal will still remain possible for reasons of capability, conduct, redundancy or probationary periods. However, it has also been stated that the ability to fairly dismiss an employee for failing their probationary period will be subject to the employer demonstrating they have followed a fair and transparent process.
As with many of Labour’s proposals, there is no detail on what a fair and transparent process would require, but what organisations should consider as minimums are:
- A probationary periods and the expectations of employees clearly set out?
- Has the employee had a full onboarding program to set them up for success?
- Is there visible management support in place?
- Are the managers taking a proactive approach in assessing the employee?
- Have regular review meetings taken place and have clear targets been communicated to the employee?
- Has there been ongoing assessment of the assigned targets?
- Has the whole probationary period process been fully documented?
We would encourage all organisations to review their current probationary period policies and practices to consider their prospects of success in defending an unfair dismissal claim.
Recruitment is Key
The recent government discussions have highlighted the fact that irrespective of the outcome of this particular debate on duration of probationary periods, recruitment will be a key factor for employers to ensure they have people who are the right fit for the role and the company as an entity.
Greater focus should be placed on recruitment from the outset to ensure attracting and retaining the right employees for the organisation which in turn should minimise the need for capability and conduct dismissals.
Key considerations are:
- Knowing what the company can offer in terms of culture and experience.
- Being clear on the company requirements for the role and setting these out to the candidates through effective use of job descriptions, advertisements and social media.
- Implementing and/or developing an employee referral program.
- Reviewing recruitment software to determine its effectiveness and functionality in meeting needs.
- Consideration of current/past employees for new roles.
- Investing in the interview and assessment process to make it an in-depth and engaging experience for candidates.
- Following up and encouraging candidate feedback.
As with all employment practices, it is important when reviewing and developing existing processes that the company is mindful to ensure that there is no risk of discrimination or unreasonable behaviour, which could increase the risk of an Employment Tribunal claim.