The Employment Rights Bill (ERB) has been heralded as the most significant change to employment rights in a generation and has been the subject of much publicity since the Labour Government came into power.
The end of the two-year rule
One of the most significant changes proposed in the bill is making the right to claim unfair dismissal a “day 1” right and removing the current 2-year qualifying period of service. While there are various employment tribunal claims that do not require any particular length of service, to claim that you have been unfairly dismissed normally requires 2 years’ continuous service.
The ERB has been working its way through the parliamentary process and reports in recent months have focused on a number of amendments to the main provisions of the bill put forward by the House of Lords. These amendments included, significantly, a proposal for a 6-month qualifying period of service for unfair dismissal claims.
Commons vs Lords: the debate over amendments
Last month, the House of Commons confirmed that it would be rejecting the amendments proposed by the House of Lords, which means that the bill will be returned to the House of Lords for further consideration with day 1 unfair dismissal protection still intact.
It is worth noting that, while it is proposed to become a day 1 right, it is still envisaged that employers will be able to use a statutory probationary period (predicted to be 9 months) during which it can fairly dismiss employees by using a less onerous or lighter touch process.
The details of what this lighter touch process will look like are still to be determined, and the government is expected to launch a consultation this autumn to consider the length of the probationary period and the process employers will have to follow, so there will be more detail emerging over the coming months.
What employers need to know next
Of all the changes being proposed within the Employment Rights Bill, day 1 unfair dismissal protection could have the most significant impact on businesses across Scotland and the rest of the UK, with the government’s own analysis indicating around 9 million employees had been working for their employer for less than 2 years, based on statistics from 2023.
There had been various reports on the amendments to the ERB proposed in the House of Lords, with speculation on whether the 6-month service requirement for unfair dismissal claims would be accepted by the House of Commons.
Unsurprisingly, given that some of these amendments contradicted Labour’s manifesto pledges, the House of Commons has rejected them, meaning the bill will be sent back to the House of Lords, who will likely, as parliamentary convention dictates, back down.
These developments do mean that we’re edging closer to knowing exactly what the changes to employment law will look like. While the Government’s roadmap for implementation of the provisions in the ERB sees day 1 unfair dismissal protection pencilled to come in during 2027, employers need further clarity of how any statutory probationary period would work in order to properly prepare for the significant impact that this change is expected to have.
Published 03 October 2025
