At the beginning of this month, the government published its roadmap to implementing the Employment Rights Bill, which introduces key reforms to strengthen workers’ rights and is part of the plan to ‘Make Work Pay’.

The Bill is yet to be passed as law, however, it is currently at the report stage in the House of Lords and nearing the final stages. The House of Lords has made a key amendment to the change to unfair dismissal law, which will need to be considered by the House of Commons.

The government is taking a phased approach to introduce the Bill’s measures in order to allow for consultation, drawing up secondary legislation and regulations, policy and guidance. This will also allow employers time to familiarise themselves with the changes and implement them.

Consultation with stakeholders including employers, workers and trade unions will be phased as follows:

The commencement of measures will be phased as follows:

The roadmap confirms the government’s commitment to engage with the public body Acas (Advisory, Conciliation and Arbitration Service) in the process of implementing the Bill and to ensure there is sufficient capacity and capability within the employment tribunal system and the new Fair Work Agency. This will be vital to enable enforcement of the new legal measures and is of particular concern to employment law practitioners who are all too aware of the current lack of capacity and considerable delays within the employment tribunal system. There is currently a backlog of 50,000 cases within the system with an average wait time of 18 months for a final hearing.

The employment tribunal’s capacity is particularly pertinent to the government’s proposal of ‘day one’ protection from unfair dismissal which would be likely to lead to a large increase in claims – the government’s impact assessment estimated a 15% rise in claims. This is in part why the House of Lords has refused this proposal and instead amended the Bill to reduce the qualifying period from two years to six months. They have also refused the proposal to introduce a new dismissal process for the ‘initial period of employment’ i.e. a statutory nine-month probationary period.

The House of Lord’s proposal of a six-month qualifying period is more straightforward than the government’s day one right, with a statutory probationary period and a new specific dismissal process for that period. It will be easier for employers to implement and for employees to understand their rights. It will certainly offer far more protection to employees than the current two-year qualifying period and will still allow employers flexibility during the first six months, to assess suitability and performance of a new employee without the fear of having a claim brought against them. However, perhaps a nine or twelve-month qualifying period would be more suitable for providing employers with sufficient flexibility. This is essential to encouraging employers to hire new employees, take risks on individuals on the edge of the labour market and to protect small businesses. 

Regardless of whether the House of Commons accepts the House of Lord’s amendment or not, it is sensible that consultation on the change to unfair dismissal law will begin this summer, and that commencement will be in 2027, as it will have a significant impact on all employers, and there needs to be careful consideration of striking a balance between protecting employee rights and providing employers with flexibility.