First day rights: why employers should not fear Labour’s plan

The new government’s plans to give employees day-one rights puts the onus on employers to improve their screening and referencing procedures before recruiting people, argues Susie Thomson

The introduction of day-one unfair dismissal rights, as promised by the new Labour government, will represent a seismic shift in UK employment law. For businesses, this change signals the need for a more strategic approach to hiring, one that emphasises thorough pre-employment screening, careful referencing, and the potential extension of probation periods. As an advocate for robust background checks, I believe that these measures are crucial to navigating the new legal landscape and ensuring that employers make the right hiring decisions from the outset.

While concerns have already been raised by business leaders, including in recent discussions with deputy prime minister Angela Rayner and business secretary Jonathan Reynolds regarding the potential impact of stricter employment laws on jobs and economic growth, these challenges only underscore the importance of robust pre-employment screening.

Although more stringent regulations may pose difficulties for employers, ensuring that the right person is hired for the right role is paramount. This is where comprehensive background checks become not just valuable, but essential in adapting to and thriving within the evolving legal framework.

Currently, employees don’t have the same protections against unfair dismissal in the first two years of employment, which has provided employers with the flexibility to assess new hires without the immediate threat of legal claims. This period has been essential for SMEs in particular, where resources for comprehensive HR management are often limited.

However, with the new government’s proposed changes, this grace period could be eliminated entirely, leaving employers exposed to legal challenges from day one. This shift necessitates a more cautious and deliberate approach to recruitment.

The Employment Rights Bill plans, as they stand, will not prevent fair dismissals or probationary periods with fair and transparent rules and processes, say Labour ministers. Businesses will await clarity on how this will be catered for in the forthcoming legislation. The key to mitigating the risks associated with day-one unfair dismissal rights lies in the recruitment process itself.

Comprehensive background screening is no longer just a best practice – it’s a necessity. By thoroughly vetting candidates before they even set foot in the workplace, employers can reduce the likelihood of hiring someone who may later become a legal liability. This means going beyond the basics of verifying employment history and qualifications; it involves digging deeper into unexplained gaps in CVs, cross-referencing information with multiple sources, and conducting detailed reference checks.

Unexplained gaps

In my experience, one of the most telling signs of a candidate’s suitability is their employment history. Unexplained gaps can sometimes be red flags, signalling potential issues such as job-hopping, performance problems, or even disciplinary actions. However, gaps aren’t inherently negative – they may also indicate legitimate reasons like further education, caregiving responsibilities, or travel. The key is to explore these gaps during the screening process, asking the right questions and seeking corroborative evidence where necessary.

Another critical component of the hiring process is referencing. Unfortunately, many employers treat this step as a formality, failing to extract meaningful insights from previous employers. In the context of day-one dismissal rights, this approach is no longer tenable. References should be seen as an opportunity to gain a comprehensive understanding of a candidate’s strengths, weaknesses, and overall fit for the role. It’s important to ask specific questions about the candidate’s conduct, performance, and reasons for leaving their previous job. The more information you can gather at this stage, the better equipped you’ll be to make an informed hiring decision.

Probation

Even with the most rigorous pre-employment screening, there’s no substitute for observing a candidate’s performance in the workplace. This is where probation periods come into play. Given the proposed legislative changes, I advocate for extending probation periods from the typical three months to six months or more, where appropriate. While probation periods must be fair and transparent, extending them allows employers to assess a new hire’s capabilities, cultural fit, and overall contribution to the company over a more substantial period.

The introduction of day-one unfair dismissal rights is undoubtedly a significant change for employers. However, with the right strategies in place – robust background screening, thorough referencing, and carefully managed probation periods – businesses can navigate this new landscape effectively. By investing in these processes upfront, employers can reduce the risk of costly legal challenges down the line and, more importantly, ensure they’re bringing the right people into their organisation from the start.

As we prepare for this legislative shift, it’s imperative that employers prioritise due diligence in the hiring process. The landscape may be changing, but with careful planning and execution, businesses can continue to thrive while safeguarding their interests.

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