I’m going to say something that might raise a few eyebrows.
If there’s someone in your business who genuinely isn’t right for the role, and you’ve been putting off dealing with it, now is the time to act.
Not because I’m encouraging anyone to be ruthless. Not because I think employers should be able to dismiss people on a whim. But because the law is changing, the window is narrowing, and if you wait, you will have far less room to manoeuvre and you risk a longer, drawn-out ‘moving on’ process.
Let me explain.
Unfair dismissal law: What’s changing and when
Right now, employees need two years of service before they can bring an unfair dismissal claim. That gives employers a reasonable window to identify when someone isn’t working out and deal with it, provided they aren’t breaching their contract or discriminating.
From 1 January 2027, that qualifying period drops to six months.
Six months! That’s barely past the end of a standard probation period for most businesses. Which means the window for managing underperformance with lower legal risk is about to get significantly smaller, but the cost of getting it wrong stays exactly the same.
Employment tribunal legal fees start at around £20,000. Compensation awards are on top of that. I’ve seen employers walk away from disputes £50,000 down. That’s not scaremongering, that’s just a bad Tuesday for those employers.
The probation ‘gone wrong’ cases I’m dealing with right now
Think it won’t happen to you? Think again, and trust me when I say, it could happen to anyone.
I want to give you a sense of what it looks like when employers wait too long, or act too fast without proper process, because both are equally costly.
Case one: the on-the-spot redundancy
A business owner fell out with a senior member of staff. In one meeting – no process, no consultation, no paper trail – he made them redundant on the spot.
That employee has now brought a claim. The employer is looking at least £25,000 in compensation plus around £20,000 in legal fees. £45,000, because a conversation went badly and no one stopped to think about the process.
Had they called a HR consultant before that meeting? An advice call averages at £125. Walking them through the whole redundancy process properly would have cost less than £500.
Case two: the phone dismissal
An employee had a panic attack at work and asked to work from home the next day. Her manager, frustrated and not thinking clearly, rang her up and sacked her over the phone.
She had over two years’ service. It went to a tribunal. The employer lost and ended up £50,000 down.
Their excuse?
“Nobody told me how to do this properly. I took over the business from my dad. I didn’t know.”
And, you guessed it, it did not wash with the judge.
I hear this a lot. And I do have sympathy, genuinely. Most employers who get it wrong aren’t bad people. They’re just people who didn’t know what they didn’t know, at exactly the wrong moment.
But “I didn’t know” is not a defence at a tribunal.
So why is now the time to act?
The Employment Rights Act 2025: Big changes to probations
Because under the current rules, if someone has under two years’ service and you follow a reasonable process, your exposure is significantly lower. You still need to act fairly (I’ll come to that), but the legal risk is more manageable.
After January 2027, that buffer disappears. A new hire who isn’t performing at month seven is in almost the same legal position as someone who’s been with you for ten years. That changes everything about how you approach underperformance, capability, and probation.
If you have someone in your team right now who you know, hand on heart, shouldn’t be there, the sensible, commercially sound thing to do is deal with it properly, before the rules change.
“Properly” is doing a lot of work in that sentence.
Probation processes are still essential
I want to be clear about something. Acting now doesn’t mean acting recklessly. The businesses that end up in the worst trouble are the ones that panic, skip the process, and assume that under two years means anything goes.
It doesn’t. You still need:
- A clear, documented reason for dismissal
- Evidence that the employee knew what was expected of them
- A record of any concerns raised and support offered
- A proper conversation; not a phone call, not a corridor chat
- Consideration of any protected characteristics (think disability, pregnancy, and others don’t care about length of service)
That last one catches people out more than almost anything else. I recently had a client going through redundancies where most employees had under two years’ service, straightforward enough. Then one of them mentioned she was pregnant. Enhanced protections apply regardless of length of service. The outcome didn’t change, but the process had to, and quickly.
This is exactly the kind of thing that trips employers up when they try to handle it alone.
A note on dismissing someone decently
I’ve been doing this for over twelve years. I’ve supported hundreds of dismissals. And here’s something I’ve learned: how you handle the end of someone’s employment matters; not just legally, but empathetically.
I once supported the dismissal of a painter and decorator. At the end of the meeting, he asked to go and visit the banqueting room he’d spent weeks decorating years previously. His wife came with him. We let him have a cup of tea. We handled it with dignity.
People who feel they’ve been treated with respect are far less likely to go to tribunal. That’s not just the right thing to do, it’s the smart thing to do.
The time to dismiss is now
The Employment Rights Act 2025 is changing the game. The qualifying period is dropping. The window for acting with lower legal risk is closing.
If you have a situation you’ve been putting off, I’d encourage you to stop putting it off and get proper, professional support to handle it the right way.
If you’re reading this and realising support is what you need, check out my Mayday Maintainer. For £225 + VAT per month, you get ongoing HR support so that when these situations arise, you know what to do, you’ve got someone to call, and you’re not making expensive decisions under pressure at 4pm on a Friday.