Here are my top tips for preparing for the implementation of the newly anticipated employment legislation, which will introduce day-one rights for unfair dismissal, contingent upon a probationary period and help you to reduce the risk of ending up in an Employment Tribunal.
For many organisations that lack robust recruitment, selection, probationary, and performance management processes, or have managers who are not skilled in giving and receiving feedback or managing people, the change will have a significant impact. It is now more important than ever to ensure that your performance and disciplinary procedures are fit for purpose and capable of supporting your business. Additionally, it is crucial that your managers have the necessary skills to manage people effectively.
In the recent King's Speech, subject to further government guidance, the proposed change will mean that employers can no longer dismiss employees with less than two years' service without facing the risk of an unfair dismissal claim. We are still waiting for more details on what this will mean in practice, but implementing best HR practices has never been more important. For example, it is crucial for employers to have the following in place:
To prepare for the implementation of the new employment legislation, employers should ensure they have the following in place:
A robust recruitment and selection process: This is essential to ensure you are hiring employees who not only have the skills and experience required for the role, but who also align with your company’s values and culture. A well-structured selection process should include clear job descriptions, targeted interview questions, and assessment methods to evaluate candidates effectively. This reduces the likelihood of hiring the wrong person, which can lead to performance issues down the line and costly legal challenges if dismissal becomes necessary.
A strong probationary process: The probationary period should be used as an opportunity to closely monitor and manage employee performance, especially in the early stages of employment. During this period, employers should set clear role expectations, outline behavioural and performance standards, and provide regular, constructive feedback. Employees should be given the opportunity to improve through coaching, training, and support, ensuring they meet the required standards. Regular reviews should be conducted to assess performance, and at the end of the probationary period, employers should make a clear decision on whether to confirm the employee's employment, extend the probation, or terminate the contract. The probationary process should also provide an opportunity for employees to raise concerns or ask questions, helping to ensure that both parties are aligned.
Managers equipped with the skills and capability to manage performance: It is critical that managers are not only skilled in the technical aspects of their role but are also proficient in managing team performance. They should be trained in how to give constructive feedback, set SMART (Specific, Measurable, Achievable, Relevant, Time-bound) objectives, and recognise signs of underperformance early. Managers must also be comfortable handling difficult conversations, whether about performance issues or behavioural concerns, and have the confidence to address them before they escalate. Developing emotional intelligence (EQ) in managers is also key, as it helps them navigate sensitive conversations and build strong working relationships with their team members. Click here for A Guide to Performance Management for Managers.
A clear understanding and process for implementing a performance improvement plan (PIP) and a Perfomance Capability policy that supports the business. If an employee is underperforming, having a formalised, well-communicated process for initiating a PIP is essential. The process should be transparent and structured to ensure that the employee understands where they are falling short, what specific actions they need to take, and the support available to help them improve. The plan should be time-bound, with regular checkpoints to review progress and make adjustments as needed. It’s important that PIPs are fair, consistent, and applied across the organisation, with clear documentation throughout the process. If performance does not improve, the process should then feed into disciplinary or capability procedures, ensuring that any actions taken are legally sound and in line with employment law.
A solid performance development (appraisal) process: To create a culture of continuous improvement, a well-designed performance appraisal process is critical. This process should not only focus on evaluating past performance but should also provide an opportunity to set goals for future development. Regular performance reviews—whether annually, bi-annually, or quarterly—allow managers and employees to discuss progress, identify areas for improvement, and set new objectives. The appraisal process should be tied to both individual and organisational goals, ensuring that employees understand how their performance contributes to the success of the business. In addition, the process should include recognising and rewarding high performers, providing opportunities for career development, and addressing any underperformance in a supportive, constructive way. A strong performance development process can also help identify training needs, succession planning opportunities, and areas for skill-building across the workforce.
Why These Processes Matter:
The importance of having these processes in place cannot be overstated, especially with the upcoming changes to employment law. If businesses fail to implement effective recruitment, probationary, performance management, and improvement processes, they may face increased risks of unfair dismissal claims and employee dissatisfaction. The ability to proactively manage performance, address issues early, and support employee development will become even more essential as employers navigate the evolving landscape of employment rights.
In the recent State Opening of Parliament, King Charles outlined Labour's agenda to "make work pay." He announced that the government would legislate a new deal for workers, prohibiting exploitative practices and strengthening employment rights, which will culminate in an Employment Rights Bill. These proposals include several fundamental changes to employment legislation, which you can read more about here.
The latest developments
The government has outlined in its Factsheet on Unfair Dismissal in the Employment Rights Bill that changes to unfair dismissal protections will take effect no earlier than autumn 2026. At that point, the right to protection from unfair dismissal will be available from day one of employment, eliminating the current Qualifying Period. Additionally, the right to written reasons for dismissal will apply once the statutory probationary period ends.
The government has acknowledged the importance of ensuring a good match between employers and employees. As a result, while the Qualifying Period will be repealed, a new statutory probation period will be introduced for certain dismissals, including those based on capability, conduct, illegality, or other substantial reasons. This "initial period of employment" will allow employers to dismiss employees with a simplified process. The proposed process includes a meeting between the employer and employee to discuss any concerns, and the employee will have the right to be accompanied during this meeting.
Conclusion
Although the full details of the Bill have not yet been disclosed, one of the most significant changes, namely the introduction of day-one rights for unfair dismissal (subject to a probationary period), will undoubtedly shift how businesses manage staff, particularly when contentious issues arise. It will be more important than ever to make the right hires and ensure that proactive performance management is in place, including a robust probationary period and an appraisal process that facilitates clear, constructive feedback. Additionally, upskilling managerial capabilities to address performance or capability issues promptly will be essential.
If you need HR support on this or other topic, please reach out to Progressive HR Solutions via email at info@progressivehrs.co.uk
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