Under the Employment Rights Act 2025, unfair dismissal will be a day one right. Companies currently rely on the 2 year rule, where employees can not claim unfair dismissal during this initial period of their employment.
It is proposed that from January 2027, the legislation in connection with unfair dismissal day one right will come into force.
Why we are focusing on this change now?
Employers are going to rely on the probation and early performance review. The first 6 months of employment will be the new qualifying period for unfair dismissal. This is going to be a vital and key timeline to monitor performance and assess the employees suitability in the role from a capability or conduct perspective.
Making the probation period a robust programme to assess performance is going to take time to embed into the business.
Companies may need to update their probation period e.g. where the process is currently 6 months with a potential extension, as the extension will take them outside of the new qualifying period for unfair dismissal. Where there is a disability then the process to assess the suitability and making reasonable adjustments in line with the Equality Act 2010 will need to be factored into this reduced window.
Updating documents will be essential, and this includes
- Employment contracts, particularly the probation period clause
- Staff handbook where there is reference to probation
Line managers will need to be trained to understand the new legislation, and the timescales associated with this reduced period of performance assessment. A last minute assessment e.g. at 5 months, where there is a disability to be considered will not give sufficient time to provide for any reasonable assessments.
The onus will be on the line manager to ensure that they have communicated to the employee what is expected of them during the probation period e.g. conduct and capability.
Where an employee is not performing at the expected level, then it is often simpler and more pragmatic to end the employment during the probation. If dismissal is the option, then ensure that the probation reviews have been fair, the employee has been made aware of the performance standards expected and given the opportunity to improve with the necessary support. Having a supportive and fair process can reduce the risk of a tribunal claim.
Having the right strategies in place, tightening up processes, communicating the processes to senior management and the line managers who are responsible for probation reviews, will protect the company against any disputes.
At Nockolds HR, our HR Consultants are available to provide a FREE assessment call. Where there are actions to take, our team can provide support in updating your employment contract, and staff handbook.
For a quote on training to ensure that the company is ready for the new qualifying period for unfair dismissal and the probation impacts, please reach out for more information.