Whilst we have covered this previously, it is certainly worth mentioning again that the qualifying period for unfair dismissal claims will be reduced to 6 months under the Employment Rights Act 2025 (“ERA 2025”). The change will apply from 1 January 2027. It may seem like a way off yet, and more like something to worry about in the new academic year, but a crucial aspect to note is that the change applies retrospectively. This means that anyone employed with a start date on or before 1 July 2026, will acquire continuous service on 1 January 2027 for the purposes of ordinary unfair dismissal (which includes constructive unfair dismissal).
We have recently been instructed by a number of schools and MATs to review and update their contracts of employment and workplace policies in anticipation of the change. A key feature across the board has been:
- Introduction of probation and probationary clauses for all new starters including teaching staff.
- Reduced notice periods during probation.
- A contractual right to make a payment in lieu of notice so that employment can be brought to an end immediately.
- Allowing flexibility during probation to deal with dismissal under a less onerous procedure than for example the school or MATs disciplinary or capability procedures.
Schools and MATs should ensure that contracts of employment and any policies applicable during probation are clearly and robustly drafted, ideally by lawyers who can ensure that the documents are fit for purpose and legally sound. The cost of not getting contracts and policies in order when you have an opportunity to do so could be significant if an employee acquires unfair dismissal.
It is also important that probation is managed proactively. A well-managed probation period gives schools and MATs the opportunity to properly assess whether an employee’s performance and conduct meet expectations, and, where they do not, to address issues early while also reducing the risk of future unfair dismissal claims. With changes on the horizon increasing that risk, it will be vital for schools and MATs to proactively manage employees currently in their probation periods and to take timely, well-documented action where concerns arise.
This period may be a useful time for schools and MATs to consider training managers and internal HR professionals to ensure they are adequately aware of the relevant policies and procedures relating to managing performance, and are equipped with the necessary skills to take appropriate steps proactively.
Another significant concern arising out of this and other ERA 2025 changes is the increased pressure that will be placed on the already overstretched employment tribunal system. On 11 June 2026, the Ministry of Justice published the quarterly employment tribunals statistics which show the number of single claims received from January to March 2026 (50,000 claims) greatly exceeds the number disposed of by the employment tribunal (26,000 claims). The single claim open caseload (64,000 claims) is 55% higher compared to the same quarter in 2024/2025.
With the incoming change to the employment tribunal’s jurisdiction to hear unfair dismissal claims, we can undoubtedly expect to see an increase in the number of unfair dismissal claims received. Given the significant delays presently experienced with tribunal proceedings, with final hearings routinely listed for 2030, it is unclear how the tribunal is planning to deal with this increased demand. As such, schools and MATs should be taking steps to ensure that they have adequate provision to cover future claims by staff, which will only keep increasing. This means having in place adequate insurance to cover claims not just against the school and MAT, but also named individuals such as governors, headteachers and trustees. It remains the case the Risk Protection Arrangement is the most comprehensive type of cover available to schools and MATs at this time.
This briefing is not intended to be a definitive statement of the law and is correct at the time of publication. It should not be taken as a substitute for professional legal advice. It does not represent the views of Winckworth Sherwood or any of the authors.