Employment tribunal claims: are you ready for the changing law?

Anyone who runs a business with staff will be familiar with the fear of being ‘taken to tribunal’. Employees whose employment is terminated and wish to dispute the reason or the process can bring a claim in the employment tribunals seeking financial compensation. The claim is free to bring and the form can be completed online.

At the moment, ‘unfair dismissal’ claims are only available to employees with at least two years of service. Below that level, some claims are still possible (for example, discrimination or whistleblowing), but the key unfair dismissal right doesn’t apply until two years. This has given employers a substantial window to assess new employees before the legal risk associated with dismissal increases.

From 1 January 2027, the position will change. The qualifying period for unfair dismissal will drop to six months, meaning anyone dismissed on or after that date with at least six months’ service will be able to bring a claim.

As 1 January 2027 is now only six months away (at the time of writing), anyone you are about to recruit or are currently recruiting will be among the first to gain unfair dismissal rights after six months. This is not a problem for next year; it’s a real and pressing consideration for employers now.

What does this mean in practice?

For many businesses, a six-month probationary period is standard (or a three-month probation that can be extended by a further three months). Probation is used to assess whether a new employee has the right skills and attitude and to allow employers to decide whether employment should continue.

Under the new law, a six-month probation period will end just as the employee gains unfair dismissal protection. It will not be enough at that point to simply say they have failed probation – you are likely to need to prove a performance management process similar to that you would follow with longer-serving staff.

If your probation periods are to retain value and stay practically useful, it’s essential that they equip managers to undertake regular reviews and make crucial decisions well before the six-month cut-off.

It’s also increasingly common for employees to argue that their dismissal was linked to discrimination. Clear probation processes can help to document consistent and legitimate performance issues to help disprove that framing.

What should you do?

• Review your probation periods. Are they six months or longer? If so, should they be reduced?
• Review your implementation of probation reviews. Do managers complete an appropriate form; do they hold the meetings on time; do they give focused feedback at the midpoint?
• Review your recruitment processes. Are they robust enough to ensure you are only onboarding people with a real chance of success?
• Consider whether you should be training managers on the new rules and policies.