South Africa can provide learnings for UK on ‘day one’ dismissal law changes

The new Employment Rights Bill (ERB), currently making its way through the UK Parliament, looks set to remove the current two-year continuous service requirement for claims of unfair dismissal.

Companies would still be able to dismiss employees during a probationary period, if a valid reason – such as workplace conduct relating to the employee – is given.

The new legislation, when enacted, would impact from October 2027 as part of the phased approach to the ERB’s changes – but in South Africa, a reverse of the UK’s situation is emerging.

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The laws which currently provide protection from unfair dismissal to employees working under South Africa’s employment law regime from day one are now the subject of a proposed amendment which would withdraw an employee’s right to refer an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) if the dismissal occurs in the first three months of employment or, if longer, during the employee’s probationary period.

“The UK and South African positions are interesting. While South Africa is looking to move away from a day one right to claim unfair dismissal, the UK is moving towards just that,” said David Woodhouse, an employment law expert with Pinsent Masons in South Africa.

“In South Africa, employers may be given more flexibility when dealing with new hires, albeit probationary periods are likely to receive more scrutiny where they extend the length of time during which an employee does not have a right to refer an unfair dismissal dispute to the relevant employment tribunal for resolution.”

Laura Kennedy, an employment law expert with Pinsent Masons in the UK, said the ERB would mean employers would need robust recruitment processes going forward.

“The ERB means UK employers will need to adopt new procedures regarding new hires: such as, in seeking to assess suitability, more effectively diagnosing misconduct versus training needs; and applying the process to be fixed for what will effectively be a statutory probationary period,” she said.

“While having robust recruitment processes has always been important for employers, with day one dismissal rights coming into force these are going to come into sharper focus. Employers would be well advised to review their recruitment processes to ensure that they are robust enough to support hiring managers in making the right decisions. It goes back to the saying – prevention is better than the cure.”

According to Woodhouse, the amendment will raise issues for UK employers which their South African counterparts have already had to deal with.

“UK employers will inevitably see an increase in unfair dismissal claims in the initial months of employment, something experienced in South Africa,” he added.

“Those cases often require a close assessment of whether workplace discipline or performance management is appropriate to remedy the situation.

“If the proposed amendments in South Africa are passed, it is anticipated that the amount of discrimination and automatically unfair dismissals claims brought in the first few months of employment would increase: such claims are often seen in the UK where employees do not have the service to bring ‘standard’ unfair dismissal claims.”

“Both countries should learn from each other’s experiences,” he said.