Prof. Nicola Countouris on Day-One Rights and Unfair Dismissal

This clip is taken from episode 3 of the IER’s podcast on the Employment Rights Bill. In the full episode, Labour law experts Professor Keith Ewing and Professor Nicola Countouris discuss the troubled issue of employment status and delve into the significant elements of the bill aimed at improving workers’ rights- especially the concept of day one rights.

In its current state, the Bill proposes to remove the two-year qualifying period to claim unfair dismissal – a provision that will go a long way to correct the current regime whereby an entire category of worker can be dismissed unfairly for extreme reasons without resort to justice.

However, the Bill also grants a power to introduce regulations specifying a light-touch dismissal procedure during a ‘statutory probation period’ potentially limited to the first nine months of employment. Ewing and Countouris discuss the possible consequences of the statutory probation period, and whether this waters down both the provision and the commitment to abolish the requirement that there should be a minimum period of qualifying service as a condition of entitlement to basic rights.

The Bill’s passage through the House of Lords last week saw some members give air to arguments put forward by employers and business lobbyists that awarding workers this day-one right will harm employment rates, and become overly onerous for employers facing the prospect of more unfair dismissal claims being brought against them.

Our Chair, Lord Hendy, rebuffed these claims during the debate, explaining that qualifying employees are already disincentivized to bring these claims against their employers:

“most employees bringing an unfair dismissal claim are completely unrepresented. They are on their own, so all the expense, research and preparation that have to be done must be done by them personally. That is a huge disincentive. Many, many claims—tens of thousands of them—are simply not brought because it is not worth the employees’ while to do it.

You can watch his speech in the House of Lords here.

As Dr Contouris explains in the clip above, the principle behind making unfair dismissal a day-one right is both important and necessary:

“having a two year qualifying period for unfair dismissal, as we do at the moment, means that employers can unfairly dismiss you, for whatever capricious reasons, within the first two years of your service.”

Listen to the full episode here