One of the most eye-catching proposals of the incoming Labour Government is the proposal that employees should have unfair dismissal rights from day one.
The qualifying period to bring an unfair dismissal is currently 2 years. Originally the qualifying period was 26 weeks. It was increased to 2 years by the Thatcher Government. It was then reduced to 1 year by the Blair Government and then increased to 2 years by the Coalition government in 2010. It has never been as low as starting on day 1!
There is some suggestion that special provision may be made for probationary employees but, at the time of writing it is unclear whether this will take the form of a complete exclusion or some form reduced protection? Or how long it will last for?
It is therefore perhaps a good time to revisit the ‘old’ case law concerning probationary employees. The leading case is Post Office v Mughal [1977] ICR 763 decided at a time when the qualifying period was 26 weeks. In that case at page 768 the Employment Appeal Tribunal laid down ‘guidelines’ for employment tribunals considering the fairness of a dismissal of an employee during a probationary or trial period. The EAT said that the following question should be asked:
“have the employers shown that they took reasonable steps to maintain appraisal of the probationer throughout the period of probation, giving guidance by advice or warning when such is likely to be useful or fair; and that an appropriate officer made an honest effort to determine whether the probationer came up to the required standard, having informed himself of the appraisals made by supervising officers and any other facts recorded about the probationer”.
Such ‘guideline’ authority went ‘out of fashion’ in the 1980’s and in Anandarajah v Lord Chancellors Department [1984] IRLR 131 the EAT cautioned against reliance on previous guideline authority such as Mughal in assessing the fairness of a dismissal emphasising that tribunals should apply the wording of the statutory test now to be found in Section 98(4) of the Employment Rights Act 1996.
Subsequent to that there have been cases such as White v London Transport Executive [1981] IRLR 261 where consideration was given to probationary periods in the context of an employee who was promoted to a managerial position but was dismissed for not being ‘up to the job’. The Claimant claimed that the company had been in breach of contract by not training her adequately but the EAT refused to imply a more detailed duty on the employer to ‘support, assist, offer guidance and training’ during the probationary period. Nonetheless the EAT accepted that a term could be implied to the effect that the employer should take reasonable steps to maintain an appraisal of a probationer giving guidance by advice or warning where necessary and in practical terms, this may well include the kinds of support suggested in Mughal.
Furthermore, under the original Industrial Relations Code of Practice, long since repealed, there were specific obligation on the employer to provide proper training to new employees, young people and employees whose job content changed and the lack of proper instruction or training was held to be relevant to the fairness of a dismissal in Davison v Kent Meters Ltd [1975] IRLR 154. At the very least, I would expect this issue to be addressed in a new code of practice.
Of course the reduction in the qualifying period will represent a challenge to employers and HR Advisors who have got used to the current 2 year qualifying period and may well require a review of existing disciplinary and capability procedures and training of line managers. However, one potential advantage of the change is that employees will no longer need to bring discrimination cases in such circumstances where their real complaint is one of unfair dismissal (see Brown v London Borough of Croydon [2007] IRLR 259 as an example).
