Hot Off the Press 💥
Adding to the avalanche of changes in Employment law, new proposals have been made by the Employment Lawyers’ Association to modernise and streamline employment tribunal processes, with a focus on improving efficiency, reducing case backlogs, and enhancing access to justice for both employers and employees. They believe that, if adopted, their proposals would give the impetus to start a new approach to employment justice to enable greater access to justice for both workers and employers.
A central feature of the proposals is the introduction of a three-track system for case management:
- Track 1 would deal with straightforward, low-value or less complex claims (such as unpaid wages) for less than 6 months’ earnings or up to £20,000 whichever is the lower, with tribunal officers having the power to decide these claims. This would be on a no fee/no costs basis, enabling quicker and more informal resolution;
- Track 2 would cover standard cases of moderate complexity (including unfair dismissal), with more structured case management and hearing procedures. This would include claims valued at less than two years of earnings, with a limited costs regime; and
- Track 3 would be reserved for complex, high-value or multi-issue disputes (such as discrimination claims), involving more extensive judicial oversight and longer hearings. This would include claims of more than two years’ earnings, of a particular complexity. The procedure would be akin to the way the civil courts (County Court/High Court) work currently, in relation to disclosure, bundles and witness statements.
Alongside this, the proposals include stricter case management powers, increased use of digital hearings and documentation, and revised time limits for submitting claims.
The proposals have an emphasis on encouraging early conciliation and alternative dispute resolution to minimise the need for formal hearings. These radical changes are intended to create a more responsive and cost-effective tribunal system while maintaining fairness and procedural integrity for all parties involved.
While these proposals do seem to provide a robust structure and framework, the key questions will be whether the government (1) will adopt these or similar proposals and (2) will fund the necessary judicial and support staff that would be needed for this radically different approach to dealing with employment disputes to be effective and efficient.
Moving on, we go back now to the Employment Rights Act 2025 with a particular eye on probation periods.
Employment Rights Act 2025 📰
The legal landscape is changing significantly and with the incoming reforms under the Employment Rights Act 2025, employers will realise that probation periods are no longer the low-risk escape route they once appeared to be.
The Big Shift in Unfair Dismissal Rights
Currently, employees require two years of continuous service to bring a claim for unfair dismissal. This qualifying period has given employers a significant amount of flexibility, especially during what can amount to a lengthy probation period whereby, if a new recruit is displaying performance concerns, seems to be a poor fit to the team, or they develop a bad attitude, they can be dismissed on very short notice.
Key changes from 1st January 2027:
- Reduced protection period: Employees will gain rights against unfair dismissal after just six months of continuous service, as opposed to two years;
- Immediate rights for existing staff: Anyone with six months or more continuous service will immediately gain protection from unfair dismissal.
- Compensation cap: The statutory cap on compensatory awards for unfair dismissal will be removed.
What Will Happen to Probation Periods?
Contrary to popular belief, probation periods are NOT statutory rights but more of a contractual mechanism. They can still be used for various purposes within the business:
- Monitoring performance;
- Assessing suitability;
- Provided structured feedback; and
- Managing training expectations.
That being said, what they may not provide is automatic protection from legal scrutiny.
The Hidden Risk
There are many outdated workplace assumptions where many companies still operate on the belief that probationary employees have no rights or limited protection. However, this is not correct.
Even now, probationary employees can bring claims relating to the following:
- Discrimination and Harassment (Day One Rights);
- Automatic Unfair Dismissal (Day One Rights);
- Wrongful Dismissal (Breach of Contract); and
- Statutory Employment Rights e.g., unlawful deduction from wages.
The upcoming changes simply widen the scope of risk. Employers who fail to update their internal practices may find themselves defending claims arising from dismissals that they once viewed as routine.
Preparation: What Should Employers Do Now?
The key will be adapting practices and procedures, sooner rather than later. Employers will have a shorter window to assess new recruits.
Moving forward, employers should:
- Put more and earlier effort into recruiting the right person for the vacancy;
- Revise template contracts for new recruits to reduce the contractual probation period to (we recommend) three months (with the possibility of a one-month extension, but to be used as an exception rather than as the norm) to allow employers to assess and act on concerns before the six-month statutory protection kicks in;
- Provide clear probation objectives from day one;
- Be more disciplined in holding regular and documented mid-probationary review meetings;
- Identify concerns at an earlier stage;
- Set out opportunities to improve;
- Be decisive to dismiss if improvement is not forthcoming.
We strongly recommend that employers should provide internal management training to empower managers to handle concerns more decisively and more proactively, with HR’s guidance as required.
Probation periods should be viewed less as a shortcut and more as a structured assessment process.
Probation periods are not disappearing. Employers will still be able to assess performance, address concerns and dismiss unsuitable employees where appropriate. They just need to do it more quickly to avoid the risks that come with allowing employees to clock up 6 months’ continuous service, thereby gaining protection from unfair dismissal, at a time when the cap on the compensatory award will be removed, allowing employees potentially to bring higher value claims.
Case Law Update 📢
Mr Craig Lamb v Teva UK Ltd [2026] EAT 8
Mr Lamb was employed by Teva UK Ltd as an engineering supervisor. Mr Lamb wrongly signed off an electrical fault as safe, which led to another employee suffering an electric shock. The incident was classed as dangerous and potentially fatal. Mr Lamb was subsequently dismissed for gross misconduct.
Mr Lamb brought a claim for unfair dismissal based on procedural irregularities. The employment tribunal held that his dismissal was fair. Mr Lamb appealed, stating that the decision was perverse in the circumstances. The EAT dismissed the appeal, holding that minor flaws in the investigation process did not render it to be unfair overall.
Key Takeaway for Employers: The decision is a reminder that an employer is not required to conduct the equivalent of a thorough police investigation or criminal court process. For a misconduct dismissal to be fair, an employer must believe that the employee committed the misconduct, based on reasonable grounds, having conducted reasonable investigation. Minor procedural flaws will not easily undermine overall fairness in a misconduct dismissal; they must come within the band of reasonable responses. However, this is not a free pass for employers. Employers should be mindful of their investigation procedures and follow the ACAS Code of Practice.
Boateng v Moss Bros Group Limited [2026] EAT 50
Mr Boateng was employed as a sales adviser by the Respondent from January 2017 to October 2019, when he was dismissed. In 2020, he started a tribunal claim involving multiple complaints of race/religion discrimination and unfair dismissal. However, due to the COVID-19 pandemic and the fact that Moss Bros was subject to an insolvency CVA (Company Voluntary Arrangement), the progress of the case was delayed.
At a preliminary hearing in 2023, the ET struck out the discrimination claims on the basis that even though no party was at fault, they were no longer capable of being fairly tried due to significant delay. Both Moss Bros and Mr Boateng applied for a postponement of the full merits hearing, but those applications were refused. The ET had found that 22 of the 27 persons cited in Mr Boateng’s claims no longer worked for the employer and 17 were either uncontactable or had indicated that they were unwilling to co-operate.
Mr Boateng appealed against both the strike-out decision and the refusal to postpone the full merits hearing.
Both appeals were dismissed by the EAT. They determined that the ET had not erred in concluding that, in a case involving a very large number of alleged incidents, the employer would be at an unfair disadvantage because of the unavailability of key witnesses. The EAT were satisfied that, in relation to the decision to refuse to delay the full merits hearing, there had been no material change of circumstances and the tribunal’s decision was within its case-management discretion.
Key Takeaway for Employers: This decision confirms that a strike out can be justified where there is a significant delay, diminishing the possibility of a fair trial due to the unavailability of key witnesses. This is very interesting bearing in mind it is currently taking up to four years from the issue of proceedings to get a date for final hearing in some of the tribunal offices.
Bickley v John Lewis Plc [2026] EAT 59
The Claimant brought a claim against John Lewis for gender reassignment discrimination. The Claimant’s name was legally changed by deed poll after the Acas early conciliation certificate was issued, and the Claimant issued proceedings using the new name. The ET rejected the claim under procedural rules stating that the name on the certificate was different from the ET1. The Claimant appealed.
The EAT allowed the appeal, highlighting that the ET was required to reject an ET1 where the Claimant’s name did not match that given on the EC certificate, unless it was satisfied that the Claimant made ‘an error in relation to a name’ AND it would not be in the interests of justice to reject the claim.
The EAT stated that in other situations e.g., marriage, a person may choose to legally change their name. Had the Claimant given his name on his ET1 as "Mr Isaac Bickley, formerly known as Miss Annabel Bickley", the requirement for the names on the EC certificate and ET1 to match would have been satisfied.
Key Takeaway for Employers: Employers should not expect that a tribunal will strike out claims merely because the Claimant’s name has changed between early conciliation and filing the claim. The EAT emphasised that ‘errors in relation to a name’ should not be used as a technical loophole to block claims. This aims to ensure that minor procedural errors do not prevent cases from being heard.
And finally, the interesting employment tribunal case of Ong v Aberystwyth University.
Ms Ong worked as part-time cleaner. She was dismissed (aged 69) after a dispute arose regarding the Claimant purchasing a rice cooker for a student. After her dismissal, the University gave a work reference to a prospective employer which referred to an ‘ongoing dispute’. The new employer withdrew the job offer.
Ms Ong brought claims of unfair dismissal, age/disability and race discrimination and victimisation. Her discrimination claims all failed. Her unfair dismissal claim was successful, as was her claim for victimisation in relation to the poor work reference.
What was particularly interesting was that, despite being a relatively low-paid part-time worker, Ms Ong was awarded a huge sum by way of compensation as follows:
- For unfair dismissal: £3,202.70
- For injury to feelings for victimisation: £12,000
- For interest on the injury to feelings award: £3,011.35
- For future loss of earnings due to losing her job and then losing the job opportunity because of the poor reference: a whopping £141,348.33
- Pension contributions: £13,177.77
- Tax to gross up the net figures: £91,701.94
The total gross award was £264,442.09.
Key Takeaway for Employers: What could have been a very low value claim became a very expensive financial disaster for the University because of the deliberately malicious or simply careless reference they provided, which meant that Ms Ong was subjected to detriment because of a protected act, so she was successful in her victimisation claim.