• Nicky

If you have employees with less than two years' service, now may be the time to review how things are going. 

Earlier this year, we highlighted the proposed changes to ordinary unfair dismissal rights and what they could mean for employers, particularly those operating six-month probation periods. 

With the 1st of January 2027 fast approaching, we want to remind employers of another important consideration that could easily be overlooked. 

Employees who currently have between six months and two years' service could soon gain protection against ordinary unfair dismissal. 

Under the proposed changes, the qualifying period for ordinary unfair dismissal will reduce from two years to six months, with implementation currently expected from 1st January 2027. 

This means employees who have already completed six months' service when the new rules take effect are expected to gain protection immediately. 

For employers, this makes the remaining months of 2026 an important opportunity to review their workforce and address any outstanding concerns. 

Are There Employee Issues You've Been Putting Off? 

Most employers will recognise the situation. 

An employee isn't quite meeting expectations, but the manager hopes things will improve. 

There have been repeated attendance concerns, but nobody has properly reviewed the reasons behind them. 

Perhaps there have been conduct issues or concerns about an employee's attitude, but these have only been addressed through informal conversations. 

Sometimes, particularly in busy businesses, these matters are allowed to drift. 

However, with the proposed changes approaching, leaving unresolved employee issues until the new year could make them more difficult and potentially more costly to manage. 

This doesn't mean employers should rush into dismissing employees. 

It means now is a sensible time to take stock. 

Why Does the Six-Month Qualifying Period Matter? 

Currently, most employees need two years' continuous service before they can bring an ordinary unfair dismissal claim. 

From 1st January 2027, this is expected to reduce to six months. 

For employees who already meet that threshold, the change could be immediate. 

Employers who have previously relied on the two-year qualifying period may therefore find themselves managing employees who have acquired additional employment protection. 

Once an employee qualifies for ordinary unfair dismissal protection, employers will generally need to demonstrate that there is a potentially fair reason for dismissal and that they have followed a fair and reasonable process. 

It is also important to remember that employees already have certain protections from the start of their employment, including protection against discrimination and many forms of automatically unfair dismissal. 

Less than two years' service has never meant that employers can dismiss without considering the circumstances and potential legal risks. 

What Should Employers Be Doing Now? 

Rather than waiting until January, we recommend reviewing employees who currently have less than two years' service, particularly those approaching or already beyond six months. 

Consider the following: 

1. Review employee performance 

Are employees meeting the standards expected of them? 

If there are performance concerns, have these been clearly communicated? Has the employee been given appropriate support, training and an opportunity to improve? 

If not, now may be the time to start those conversations. 

2. Address conduct concerns 

Are there outstanding conduct issues that have not been properly addressed? 

Perhaps there have been repeated incidents of lateness, inappropriate behaviour or failure to follow reasonable instructions. 

Concerns should be investigated and addressed fairly, consistently and without unnecessary delay. 

3. Review attendance and absence 

Are there employees whose attendance is causing concern? 

Have return-to-work discussions taken place? Have patterns of absence been reviewed and the reasons explored? 

Where absence may be related to a medical condition or disability, employers must take particular care to consider their legal obligations, including reasonable adjustments where appropriate. 

4. Check probation reviews 

Have probation reviews actually taken place, or have employees simply passed their probation period without any formal assessment? 

Where concerns exist, ensure these are documented and discussed with the employee. 

Employers should also consider whether their existing probation arrangements remain appropriate ahead of the proposed changes. 

5. Don't leave difficult conversations until January 

One of the most common problems we see is employers delaying conversations because they are uncomfortable or hope the situation will resolve itself. 

Unfortunately, problems rarely improve simply because they are ignored. 

Addressing concerns early gives employees a fair opportunity to understand expectations, make improvements and receive appropriate support. 

It also helps employers make informed decisions based on evidence rather than frustration. 

Should Employers Be Looking to Dismiss Employees Before January? 

No. That should not be the starting point. 

The purpose of reviewing your workforce now is not to identify employees to dismiss before they gain additional employment rights. 

It is about ensuring that existing concerns are being managed properly and that decisions are not unnecessarily delayed. 

Where an employee is struggling, the first step may be additional training, clearer objectives, reasonable adjustments or a structured improvement plan. 

In other situations, a formal process may be appropriate. 

And sometimes, despite reasonable support and opportunities to improve, an employer may need to consider whether continued employment is sustainable. 

Whatever the circumstances, decisions should be based on the individual facts and supported by a fair, proportionate process. 

Employers should also remember that notice periods and the employee's effective termination date can affect their length of service and employment rights. 

Seeking advice before making a dismissal decision is particularly important during this transitional period. 

January May Be Closer Than You Think 

With less than three months remaining before the anticipated changes, employers should be thinking about the employees they already have, not just those they plan to recruit. 

Ask yourself: 

  • Are there any unresolved performance concerns? 

  • Have conduct issues been addressed appropriately? 

  • Are attendance concerns being actively managed? 

  • Have probation reviews been completed? 

  • Are managers documenting conversations and decisions? 

  • Are there difficult conversations that have been repeatedly postponed? 

If the answer to any of these questions raises concerns, now is a good time to act. 

Our Advice: Review Now, Don't Rush Later 

The reduction in the qualifying period for ordinary unfair dismissal represents a significant change for employers. 

But the answer isn't to make hasty decisions before January. 

It is to ensure that managers are actively managing their teams, addressing concerns promptly and following fair procedures. 

Good people management shouldn't begin when an employee gains unfair dismissal rights. It should be part of the employment relationship from day one. 

Acting now could help resolve issues before they escalate, improve employee performance and reduce the risk of costly disputes later. 

How Rely Can Help 

At Rely Ltd – HR & Training Specialists, we support employers with performance management, conduct concerns, sickness absence, probation reviews and dismissals. 

If you have employees with less than two years' service and are unsure how the forthcoming changes may affect your business, we can help you review your options and take appropriate steps. 

If there are employee concerns you've been putting off, now may be the time to have that conversation. 

Contact the Rely team for practical advice and guidance before acting.