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Employment Rights Act | Why recruitment mistakes carry greater risk in 2026
As Employment Rights Act changes boost day one worker rights and speed up access to vital protections, the consequences of recruitment errors are growing.
Recruitment mistakes have always been costly. They can affect productivity, increase pressure on managers and teams, and force employers to repeat an already time-consuming hiring process.
However, changes introduced by the Employment Rights Act 2025 mean the consequences of getting recruitment wrong are becoming more significant.
An important change will take effect on 1 January 2027 - the qualifying period for ordinary unfair dismissal protection reduces from two years to six months. Immediate rights will also expand, including statutory sick pay, paternity leave, and parental leave. Together, these employment law changes significantly narrow the window for employers to assess fit and address poor hiring decisions.
In turn, recruitment and hiring in the UK is no longer just an operational task – it’s a critical control point for managing risk and protecting organisational performance.
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Why recruitment decisions now carry greater risk
A poor hire can affect far more than the recruitment budget. It can lead to:
Reduced productivity and performance
Additional pressure on managers and colleagues
Disruption to customers or service delivery
More time spent managing conduct, capability or attendance concerns
Increased employee relations and legal risk
The cost and resource involved in recruiting again
From January 2027, employees will qualify for ordinary unfair dismissal protection after six months’ service. Employers will still be able to dismiss employees where there is a fair reason and a fair process has been followed, but the window for dealing with an unsuitable hire more informally will be much shorter.
Existing day-one risks also remain. Employees do not need six months’ service to bring certain claims, including those relating to discrimination, whistleblowing or automatically unfair dismissal.
This makes it increasingly important to base recruitment and early employment decisions on clear criteria, reliable evidence and consistent processes.
In practical terms, the impact of the Employment Rights Act 2025 on recruitment is clear. These employment law reforms create a more pressured, higher-risk hiring environment.
Probation periods still matter, but they are not a legal safeguard
Probation periods remain a valuable way to set expectations, assess performance and identify where additional support may be needed. However, they do not override an employee’s statutory rights or provide a risk-free period in which dismissal can take place.
From January 2027, an employee who reaches six months’ service will qualify for ordinary unfair dismissal protection regardless of whether they have formally passed their probation.
Employers with six-month probation periods may therefore have little room to delay difficult decisions. If concerns are only raised at the final probation meeting, there may not be enough time to provide support, monitor improvement and reach a fair, evidence-based outcome before the employee gains additional protection.
The practical message is clear: probation should be an active process, not a meeting scheduled for the end of an employee’s first six months.
How employers can reduce recruitment and early employment risk
To adapt to this new environment, organisations need to move from reactive to proactive hiring. This is essential to reduce hiring risk in 2026 and strengthen overall recruitment strategy. This means focusing on three key areas:
1
Define what success looks like
Effective recruitment begins with a clear understanding of the role and what the successful candidate will need to achieve.
Before advertising, employers should:
Review the job description and person specification
Identify the essential skills, experience and behaviours required
Agree how candidates will be assessed
Set clear and realistic performance expectations
Define what successful progress will look like during the first six months
This helps hiring managers make more objective decisions and gives the successful candidate a clearer understanding of what is expected.
2
Use a consistent and evidence-based selection process
Unstructured interviews can lead to inconsistent decisions, unconscious bias and an overreliance on personal impressions. This places greater emphasis on strong assessment methods in recruitment to get hiring decisions right first time.
A stronger selection process may include:
Competency-based interview questions
Consistent scoring criteria
Role-specific tasks or presentations
Skills or aptitude assessments where appropriate
More than one decision-maker
Clear records explaining why the successful candidate was selected
The assessment methods used should be relevant and proportionate to the role. Employers should also ensure that candidates are treated fairly and that reasonable adjustments are provided where required.
A documented process will not eliminate every hiring risk, but it makes decisions easier to explain and defend.
3
Treat onboarding as part of hiring
The hiring process does not end when the employee accepts the offer. The first few weeks and months are critical to helping them understand the role, settle into the organisation and perform effectively.
A structured onboarding plan should cover:
The employee’s responsibilities and objectives
Policies, procedures and expected standards
Mandatory training
Introductions to key colleagues and stakeholders
Regular manager check-ins
Any support or reasonable adjustments required
Clear priorities for the first 30, 60 and 90 days
Good onboarding can help employers spot misunderstandings, skills gaps and support needs before they develop into more serious performance or conduct concerns.
4
Manage probation actively
Waiting until the end of probation to discuss concerns is becoming an increasingly risky approach.
Managers should hold regular reviews throughout the probation period and keep clear records of:
Expectations and objectives
Performance against agreed standards
Feedback provided
Training or support offered
Any conduct, capability or attendance concerns
Agreed actions and review dates
The employee’s response or explanation
Where concerns arise, they should be addressed promptly and fairly. The employee should understand what needs to improve, what support is available and what may happen if the required standard is not met.
This gives the employee a reasonable opportunity to improve and provides the employer with a clearer evidence trail if further action becomes necessary.
5
Recruitment and HR processes must work together
The Employment Rights Act makes it more important for recruitment, onboarding, probation and performance management to operate as one joined-up process.
A strong interview will not protect an organisation if expectations are unclear once the employee starts. Equally, a probation clause will provide limited reassurance if managers do not hold reviews, document concerns or act promptly.
Employers should review the complete early-employment journey, including:
Recruitment documentation and assessment methods
Employment contracts and handbooks, and probation clauses
Onboarding processes
Probation review timings
Performance management procedures
Systems for recording objectives, feedback and concerns
Taking action now will help employers make better hiring decisions, support new employees more effectively and reduce the risk of problems becoming harder or more costly to resolve.
Strengthen your recruitment and onboarding approach
As employee protections expand, employers need greater confidence in the decisions they make before and after someone joins their organisation.
WorkNest can help you review and strengthen your recruitment, onboarding and probation processes. From strategic recruitment support and legally compliant documentation to manager training and practical advice on performance or dismissal concerns, we can help you make confident decisions and reduce early employment risk.
Want to review your current approach and explore how to make hiring more effective and resilient in this new landscape? Contact our team for a tailored discussion. Call 0345 226 8393 or request your free consultation using the button below.
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