The clock is ticking…

June 12, 2026

… anyone employed by you on or before 1st July 2026 will be eligible to claim ordinary unfair dismissal by 1st January 2027

Currently, an employee must have two years of service to be able to bring an ordinary unfair dismissal claim. There are plenty of exceptions, for example where the employee has:

Raised a H&S concern
Raised, or is about to raise, a grievance
Has made a protected disclosure (‘whistleblowing’)

There is also no qualifying period for employees to bring a discrimination claim.

As an employer, you are facing an increasing risk of having to defend a claim:

More employees will be eligible to claim unfair dismissal from earlier in employment
They will also potentially be able to make a claim for unfair constructive dismissal
The time limit to bring a claim is set to increase from three to six months, at some point
The cap on compensation for unfair dismissal claims is also being removed from January
Employees seem to be getting ever more litigious & willing to ‘have a go’ no matter how spurious their claim!

What should you do?

There is still a little time to prepare…

Recruitment: Take time to get this right! A poor hire has always been expensive but is potentially about to become even more problematic.

Induction: Review your processes to ensure your new hire has the best chance to succeed. Be systematic – use checklists, for example. Consider having a ‘buddy’ system to deal with any of those ‘little questions’ which feel too trivial to raise with a manager…

Probationary period: The traditional, standard six-month probationary period is no longer fit for purpose – to be fair, it has often been poorly utilised up to now. All too often the months tick by with little oversight, six months arrives & the employee ‘passes’ probation, only for it to later become clear they are not up to the standard needed.

A way forward?

We suggest moving to a three-month probationary period for all new employees, with the option to extend by a further one or two months. It is essential that this is well-structured, the employee is properly monitored and sensible decisions are made!

Probationary Period

Make sure you have a well-structured, robust process to monitor new employees
Who will be responsible?
Do they need training in providing constructive feedback and conducting reviews?
Make sure they have simple tools and guidance to record any performance concerns
Keep good records of meetings, issues raised, support offered, targets set etc

A suggested outline…

Informal review after one month to identify any concerns/ support needs
More formal review at two months – identify any improvements needed in order to successfully pass probation, make sure the employee understands what’s expected & put in place any support or training needed
Formal review at or just ahead of three months – decision on whether to pass probation, extend or terminate employment

Some practical points…

Who will be monitoring and reviewing performance?
Do they need training or support?
Remember – many people struggle with giving constructive criticism
Document all reviews, also keep records of informal feedback, touchpoints etc between reviews
Set clear targets, objectives & expectations
Identify any additional support or training needing & put it in place
Could a disability or other protected characteristic be impacting performance? If so, what reasonable adjustments can you make?
Standardised forms/ checklists setting out expectations for each role may be helpful
If you’re not sure, do not pass their probation!
If they pass, it’s usual to confirm this in writing, along with any other changes to T&Cs eg if they now qualify for specific benefits
Continue with regular, semi-formal reviews on a monthly basis as they approach six months of service
Some people will have been ‘on best behaviour’ and standards may fall as they relax…

Extending Probation

Be realistic about your expectations!
You would hope they will have been trying their hardest in those first three months!
Do they have the scope to improve in the timeframe available?
If so, what support do they need?
If this is more an attitude problem things are unlikely to improve
Always bear in mind the possibility of disabilities, including mental health and neurodivergence, and be ready to make reasonable adjustments
Give specific targets and put in place any additional support or training which is needed
Document everything & review regularly

Termination of Employment

If you do decide you need to terminate employment, do it in good time
Statutory minimum notice of one week is added when calculating length of service
Once an employee accrues six months of service you would need to follow a full, formal disciplinary or capability process before terminating employment, as per the ACAS Code of Practice
Failure to do so would make it more likely that you would lose an unfair dismissal case & potentially lead to an uplift of up to 25% to any award made
Generally, we suggest termination with immediate effect & pay in lieu of notice (PILON) – helps to have a PILON clause in your contracts
Even if you choose to offer longer notice generally, keep it to one week during probation (including any extension of it) to avoid the obligation to pay in lieu of very long notice period
Termination shouldn’t come as a shock – if you have followed a good process, they should be aware that their performance is below the expected standard
You can include written reasons but exercise some caution!
We recommend (generally) to allow a written appeal as a ‘safety net’
No dismissal is ever 100% safe – take advice!

In Summary

The reduction in qualifying period to bring a claim for ordinary unfair dismissal from two years to six months comes into effect from 1st January 2027
Act now to prepare for the changes
Get advice if you’re not sure what you should do!

You can read more about the Employment Rights Act here – please note that this refers to day one unfair dismissal rights and this part should be disregarded!

Please note – the information in this article is for guidance only and is not a substitute for specific legal advice.

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Employment Law