Unfair dismissal – A day one right

A significant change to the law is coming in 2026 which will hugely impact employers

As it currently stands (June 2025) an employer can dismiss an employee with less than 2 years’ service and the employees’ rights to pursue a claim for (ordinary) unfair dismissal are limited.

In one of the most significant changes to employment law being introduced with the Employment Rights Bill, employees will no longer have to have 2 years’ continuous employment to be able to pursue a claim for ordinary unfair dismissal.

Given the pace at which the Bill is progressing through Parliament, this is something that employers will have to manage from as early as Autumn 2026.

By removing the current 2 years’ threshold, it is expected that there will be a considerable increase of claims in the Employment Tribunal and given the volume of cases already being pursued, this will likely result in major backlogs with parties facing at least 12-18 months from the issue of the claim to conclusion at a final hearing.

Initial period of employment: statutory probation

The Employment Rights Bill 2025 will implement an initial probation period of employment, the length of which has not been finalised but is widely thought will be nine months.

Whilst we await the full details as the Bill moves through consultation, we understand that employers seeking to dismiss during the initial probation period of employment will have to follow a minimum procedure before dismissal which will likely include a requirement to hold a meeting with the employee to discuss the issue, with the opportunity for them to be accompanied and written confirmation of the outcome or decision to dismiss with written reasons to be provided after the meeting.

Once the initial probation period of employment has come to an end, the usual unfair dismissal protection will apply.

Requesting written reasons for dismissal

Currently an employee with 2 years’ service who has been dismissed can write to their employer under the provisions of S92 of the Employment Rights Act 1996 and is entitled to receive a written statement giving particular reasons for their dismissal.

With the removal of the 2-year service rule, employers will now have a legal obligation to provide this to employees dismissed on completion of their initial period of employment. It is therefore important that employers are prepared to answer these requests in writing within fourteen days of such request.

What should employers be doing now?

Whilst it may seem that August 2026 is a long way off, employers will need to ensure that they are prepared to implement robust policies and procedures as soon as this change is introduced and should use this time to review their documents, probation and dismissal process.

1. Identify any training needs

Managers will need to be aware of the change being introduced and the process that will now need to be followed for any employee under 2 years facing dismissal. Employers may consider what changes could be made to the probation process now such as scheduling regular performance meetings to ensure a seamless transition when the changes are implemented.

2. Performance management records

Identify how managers will play a part in employees performance management from the outset and throughout the initial period of employment. If targets are clear and honest feedback is recorded this will support any decisions to dismiss. 

3. Review handbooks, contracts and policies

Once the length of the initial period of employment has been confirmed all employee contracts will need to be reviewed and amended. As well as this staff handbook and policies will need to be reviewed to ensure processes are accurate.

In summary whilst the removal of the 2-year service requirement will inevitably increase the risk of claims, if employers can demonstrate that they are following due process and not abusing the probationary period, they will be in a stronger position to defend these claims when they arise.

We can help you!!!

Our team are able to assist with a range of enquiries and HR support.  If you have any questions about these changes and how they will affect your business, please get in touch with us on 01983 897003.