If you have just made a job offer, the next step is usually to draft the employment contract, which will likely include a probation period. Probation has long been a useful way to assess whether a new starter is the right fit, but with the Employment Rights Act 2025, its importance will only increase.
From January 2027, the qualifying period for unfair dismissal will reduce from two years to six months for employees engaged on or after 30 June 2026. This gives practices a much shorter window to assess suitability before additional protections apply. Having a clear probation policy and structured processes in place provides a strong foundation for managing this effectively and in line with employment law.
Getting probation right
The approach you take to probationary periods now needs more careful thought. We often see probation set at anything between three and six months, which can seem reasonable. However, issues arise when practices delay decision-making, either by extending probation or by hesitating to act when it is clear that the role is not working out. A longer probation period might feel like a more comfortable option, but in practice it can make difficult decisions harder and prolong what may be an inevitable outcome.
There is no specific law defining how long a probation period should be. However, if you choose to include one, it must be clearly stated in both the employee’s contract and their written statement of employment particulars. With the reduced qualifying period, it makes sense to keep probation closer to three months, giving you sufficient time to act if concerns arise and decisions need to be made.
Why probation matters
If you look at probation from a practical perspective, its purpose becomes clearer. In many areas of life, such as subscription services, there is an introductory period where you can decide whether something is right for you before committing further. If it is not working, you cancel early before being tied into a contract. The same principle applies here. If a role or individual is not the right fit, dealing with it early during probation is not only more efficient, but also more beneficial for everyone involved.
We often see situations where a candidate appears ideal during recruitment, but the reality in practice is different. This is particularly common with experienced team members who may struggle to adapt to new systems or ways of working. That does not make them ineffective, it simply means the fit is not right in this particular environment. Recognising this early and addressing it appropriately is part of effective management.
Managing issung probation
It is not uncommon for conduct or performance concerns to arise during probation. Where concerns do arise, consider whether they can be resolved with additional support such as further training or clearer guidance on expectations. Your response should reflect the seriousness of the issue. Minor concerns may only require an informal conversation while the individual is still settling in. More serious or ongoing issues, however, may justify extending probation or taking formal action, which could ultimately include dismissal.
With unfair dismissal protection soon to apply from six months’ service, it is more important than ever to identify and address concerns early.
We recognise that taking formal action, including removing someone from post, can feel uncomfortable. However, it is important to consider the situation from the perspective of the employee in question. If you have concerns about their suitability, they are likely aware of them too, and that uncertainty can begin to affect both the individual and the wider team.
Addressing the issue early, however difficult, is often the kindest and most constructive approach for both the individual and the practice. Left unresolved, these situations rarely improve and can instead develop into more complex problems that could have been avoided.
Staying within the law
Although employees will need six months’ service to claim unfair dismissal, there are still considerations during any dismissal process. From day one, employees are protected under areas of UK employment law, including:
- Protection against discrimination
- Entitlement to statutory or contractual notice periods
- Protection from automatic unfair dismissal (for example, relating to pregnancy or whistleblowing).
This means that any action taken during probation must still be fair and reasonable. We have seen members face expensive tribunal claims when they dismissed an employee in the first few weeks without following any procedure. If you have genuine concerns about a new member of staff, following a fair procedure will help you defend claims from these day-one rights.
Our employment law advisors are available to offer unlimited one-to-one advice to Extra and Expert members to guide you through the probationary process.
In most cases, new employees will settle in and become valued, effective members of the team. Where that is not the case, it helps to consider how you would want to be treated and act accordingly, typically through an honest, early conversation and a clear resolution, making the right decisions at the right time.