HR Solutions, Protecting the business from tribunal claims
Here is the Hot Topic for October 2025 and an accompanying webinar, which was on 09 October 2025.
1. Introduction
In this month’s Hot Topic, we explore the different types of dismissal that include constructive, wrongful dismissal, automatic unfair and unfair dismissal and consider how the proposed new day 1 right to claim unfair dismissal will impact avenues of claim. We will also consider other avenues for how someone can raise a claim.
2. Current avenues for claim
Employees and workers, and in some instances contractors, have several avenues for raising a claim at an employment tribunal. Here is a summary:
Automatic unfair dismissal
The Employment Rights Act 1996 sets out various reasons for dismissal that make it automatically unfair. An employee does not need any qualifying service to bring a claim of this nature.
Breach of contract
A claim for breach of contract may be brought to an employment tribunal if it is for less than £25,000. The remedy is normally damages, i.e. payment in respect of the actual losses suffered as a direct result of the breach.
Discrimination
Under the Equality Act 2010, individuals are protected from being discriminated against if the act of discrimination is for one of nine protected characteristics, these are: Age, Disability, Gender reassignment, Marriage and civil partnership, Pregnancy and maternity, Race, Religion or belief, Sex, Sexual orientation. In Northern Ireland, there is also the protected characteristic of political opinion.
Protection under the Act, extends to employees, as well as those who are contracted to do work personally for example a self-employed worker who is obliged to perform work personally and who cannot provide a substitute, as well as job candidates and ex-employees/workers.
Unfair dismissal
The right not to be unfairly dismissed is a statutory right for which there are three qualifying conditions; first, the person must be an ‘employee’; second, they must have been dismissed and third, have been continuously employed for a period of at least two years by the effective date of termination.
Unlawful deductions from wages
A failure to pay wages, gives workers the right to bring a claim for unlawful deduction from wages. There are however certain limited circumstances in which a deduction can be permitted lawfully – where it is required or authorised by virtue of any statutory provision/or by the contract, and where the worker has previously signed in writing their agreement or consent.
Wrongful dismissal
An employee is dismissed if their dismissal was in breach of the contract of employment. Normally this will mean dismissal without the notice that is due under the contract.
Clearly, you will see from the illustration that different groups of workers have different legal protections. For this reason, it is important to correctly determine a person’s employment status. Read our article on employment status for further guidance.
3. Protecting the business
Our advice for employers to mitigate against tribunal risk includes several preventative measures:
1. Legally compliant documentation: Ensure all employment contracts, handbooks, and policies are up-to-date and legally compliant. These documents should clearly outline expectations, rights, and procedures for both employees and the business.
2. Clear robust policies: Have clear, robust policies on key areas such as disciplinary grievances, bullying and harassment, equality and absence management. These policies should be aligned with Acas’ Codes of Practice, be accessible to all employees and followed consistently.
3. Establish reporting mechanisms: Establish clear reporting mechanisms for employees and workers to raise concerns.
4. Consistent application of rules and practices: Apply all policies and procedures consistently across all employees and situations to avoid claims of unfair treatment or discrimination.
5. Training: Provide regular training for managers and staff on employment law, equality, diversity and inclusion, which includes unconscious bias and how to recognise subtle signs of harassment, bias, and victimisation, as well as company policies, and best practices for handling difficult situations.
6. Fair Recruitment: Implement fair and non-discriminatory recruitment and selection processes whilst keeping detailed records of the process. Promote fair recruitment and progression practices such as using structured interviews, operate diverse hiring panels, regularly review promotion, pay, and appraisal processes for bias.
7. Monitor and analyse EDI data: By analysing grievances, complaints, and exit interviews it allows you to spot patterns and act upon areas of concern, therefore preventing future reoccurrence.
Furthermore, how you respond to a workplace issue is also pivotal for defending the business at tribunal and limiting risk. Our advice therefore when responding to workplace issues, is to:
1. Address issues early: Address concerns or performance, conduct issues promptly and fairly. Early intervention can prevent minor issues from escalating into major disputes.
2. Follow procedures: Always follow the correct procedures for disciplinary, absence, performance, grievances, or dismissals, as outlined in your company's policies and the ACAS Code of Practice.
3. Document everything: Maintain meticulous records of all employee interactions, including performance reviews, disciplinary actions, meeting notes, and communications. This documentation is your key evidence.
4. Consider alternatives: Before a claim is lodged, consider alternative dispute resolution methods like mediation or a settlement agreement.
5. Seek HR advice: Engage with your in-house or outsourced HR team early when potential issues arise. Timely employment advice can prevent a claim from being filed or help build a strong defence if it is.
4. How the Employment Rights Bill will change how someone will be able to seek legal recourse
The Employment Rights Bill is set to bring the most significant reforms to UK employment law that has occurred in decades. There are several huge changes on the horizon directly relevant to employment tribunals:
1. The timeframe for lodging a claim to be increased from 3 months to 6 months
2. Protection from unfair dismissal will become a day one employment right, currently 2 years continuous service is required
3. A new statutory probation period, known as the initial period of employment, will be introduced
4. A new enforcement body called the Fair Work Agency will be created that will have powers to bring tribunal claims, even if the employee is not intending to.
Based on the anticipated changes to UK employment law, here are suggestions for how an employer can prepare:
Preparing for increased timeframe for claims:
With the time for lodging a tribunal claim extending from 3 to 6 months, employers face a longer period of potential liability. It may therefore mean extending your document and data retention policies.
Keeping meticulous records of all employee-related issues, including disciplinary actions, grievances, performance reviews, and termination documents, for at least a year after employment ends will be crucial as evidence may be harder to gather over a longer period.
Preparing for the change in rules for claiming unfair dismissal
The removal of the 2-year service requirement for unfair dismissal claims is one of the most significant changes, meaning new employees are immediately protected. It will mean employers will need to review and update their disciplinary procedures.
Even for new starters, you must have a fair and documented process for dismissals. This means you can no longer simply terminate a new employee's contract without a valid reason and a fair procedure. One common practice that will be impacted, is the use of a ‘short service dismissal’ approach; where an abridged disciplinary process is used (but only in situations where there are no potential discrimination).
It will also mean ensuring you are thorough in documenting performance from day one, so you have clear evidence to support any decision to dismiss. Implementing a system for regular performance reviews and feedback, even during the initial period of employment will become essential.
It also means managers and supervisors will need mandatory training on the new unfair dismissal rules so that they understand the importance of following proper procedures and documenting performance issues to avoid claims.
Preparing for a new statutory probation period
The introduction of a new "initial period of employment" will be key to managing the change in unfair dismissal rights. Your employment contracts must clearly define this new statutory probation period, and a probation policy will be required setting out its purpose, duration, and the specific performance criteria or objectives an employee must meet.
Other measures such as having a structured onboarding plan for all new hires will be pivotal. It must be robust enough to mitigate claims of unfair dismissal. Onboarding processes should include clear objectives, regular check-ins, and documented feedback sessions to monitor the employee's progress.
The probation period will become key for actively managing performance. If issues arise, formal warnings and a chance for improvement are likely to be vital. This documented process will be essential evidence if a dismissal occurs during or at the end of the probation period.
Preparing for the new Fair Work Agency
The new enforcement body will have the power to bring claims on behalf of employees, increasing the risk of external intervention. Being proactive in carrying out compliance audits will therefore be essential. The Agency will have powers to address non-compliance in pay, holiday entitlement, and working hours.
With greater exposure to scrutiny, employers should focus on improving their record keeping for all employment-related data, including hours worked, leave accrual, and pay calculations.
5. Our top 10 tips for preparing for the Employment Rights Bill
1) Stay informed & understand the reforms –you can do so by reading our monthly newsletters and reading all the latest articles
2) Carry out an Impact Assessment: How will the reforms impact your business? – did you know, we have recently introduced template impact assessments, starting with the key ones first, and we’ll be adding to the list available in the coming weeks. Make the situation more manageable by highlighting which reforms impact you the most and assess each one in order or priority.
3) Budgeting and forecasting are significant steps and as we perhaps come up to the budgeting season for many organisations. Now is the time to start thinking about how the reforms, especially those coming in in April 2027, will impact on the bottom line
4) Conduct a comprehensive audit – so see how aligned your business is already to employment law, doing this now and correcting any omissions will make it better in the long run for making change
5) Develop a strategic people plan aligned to organisational goals – don’t forget, delivering the business plan can only be achieved through your people, so start to think about your strategic actions that will be necessary to support the business and your workforce through change
6) Update HR and payroll systems – clearly all employers are going to need to ensure all existing systems are capable at dealing with the changes, and for some employers, there may need to be some investment in technological solutions
7) Develop compliant policies & working practices – this is huge – you will need to reexamine your policies and working practices to ensure compliance with the bill
8) Engage and consult with your workforce
9) and if you’re unionised review existing relations with any Trade Union you recognise, as this will be essential for managing change, so have this as a key item in your strategic planning
10) Train your workforce; Line Managers, Employees and HR & Payroll Teams which must be a given – if your managers aren’t capable of implementing the new rules, you risk tribunal claims and bad publicity for your organisation too.
6. Further Information
The Knowledge Base is your central point for accessing articles and employment templates. Protecting the business from tribunals is a fundamental part of employment people, and so the information on the Knowledge Base is vast. At the top of this article, you will find all associated articles to this topic, along with document templates.
7. The Employment Rights Bill:
Keep an eye out for our continued updates on the Employment Rights Bill. We continue to share news developments in our monthly newsletters, and we share with you at the end of each month, what new templates and articles have been added, or which existing ones have been revised – all for legal compliance.
Key tools and advice available on the Knowledge Base include:
1. Template forms for you to carry out your own impact assessments of the various reforms. We currently have available:
a. FORM_ADM05 Impact Assessment – flexible working
b. FORM_ADM05 Impact Assessment - harassment
c. FORM_ADM05 Impact Assessment – tribunal time limits
2. Our article ‘Employment law timetable’ sets out useful information in chronological order of the legislation that is due in. Where we do not have precise implementation date, we provide an approximate timeframe to help you to continue plan.
3. You will find on our home page all new articles that have been added in the previous two weeks. This is a helpful visual when on logging onto the Knowledge Base.
4. Check out our webinar calendar on our events page, as we continue to provide updates on the ERB through our webinar programme.