Probation Periods Are About to Matter a Lot More: A Guide for Employers
Right now, an employee generally needs two years' service before they can bring an ordinary unfair dismissal claim. From 1 January 2027, under the Employment Rights Act 2025, that qualifying period drops to six months, and it will apply immediately to anyone who already has six months' service on that date. In practice, that means anyone you hire from July 2026 onwards is already accruing towards that protection.
This is a meaningful shift and probation, which is often treated as a formality, is about to become one of the most important tools you have.
Why probation gets overlooked
A few habits show up in businesses of every size:
The offer letter has a probation clause, but nobody diaries the review dates, meaning the probation period exists on paper but not in practice.
"Let's see how it goes" replaces a genuine assessment of performance; informal impressions build up, but nothing gets written down until there's a problem.
The best performers get more slack than everyone else, often without anyone consciously deciding that, leading to inconsistency that can undermine a Tribunal process if a decision is ever challenged.
Roles with a longer natural learning curve get judged on the same rough timeline as everyone else, even when three months is genuinely not enough time to k
None of this is a reason to panic. But it is a reason to make probation an practical process, where everyone’s performance is reviewed on purpose, rather than being something you only think about properly once someone's clearly not working out.
What's changing, and when
For terminations that are effective on or before 31 December 2026, the qualifying period for unfair dismissal remains two years.
From 1 January 2027, the qualifying period reduces to six months, and applies to anyone who already has six months' service at that point. This means that anyone hired from July 2026 will already be within scope of the new rules if their employment is terminated on or after 1 January 2027.
Also from 1 January 2027, the statutory cap on compensation for ordinary unfair dismissal is being removed entirely which materially raises the cost of getting a dismissal wrong.
Probation periods can still legally run longer than six months. But if you're relying on the two-year qualifying period as a safety net to sort out a problem hire whenever suits you, that safety net is shrinking fast.
Getting probation right
Set real, role-specific objectives on day one so that you and the employer are both clear what success actually looks like in that job.
Build in a realistic timeline; if a role genuinely takes four months to bed in, your review milestones should reflect that rather than be based on a one-size fits all approach.
Conduct regular check-ins, and write them down. You don’t need to write war and peace, but a five-minute note after each one (what was discussed, what was agreed) is worth far more later than a clear memory of "we did talk about it."
Extend probation properly if you need to; where there are good reasons to do so, document any probation extension in writing and set clear performance targets.
Apply the same standard to everyone; if a strong performer gets more informal leeway than someone else in a similar role, ensure you can explain the difference in treatment in case it’s ever challenged.
Have an early, honest conversation when something isn't landing, and don’t save this for a final probation review.
Ensure there is a clear probation outcome (pass, extend or part ways) with the reasoning recorded either way.
Common mistakes employers make
Treating probation as a box to tick rather than a genuine assessment window.
Only having "the conversation" once things have already gone wrong, rather than flagging concerns as they arise.
Being warmer and more supportive to people you like, and quietly harsher to people you don't, without a documented, performance-based reason for the difference.
Letting probation drift past its end date with no formal extension and no clear decision.
FAQs
Do I still need a fair process during someone’s probation?
Yes. Even without unfair dismissal protection, a fair, consistent process protects you against discrimination claims, which don't require any qualifying service, and it's also good management practice.
How long should a probation period be?
It depends on the role and how long it realistically takes to know if someone's settling in. For most companies this will be 3-4 months.
Can I dismiss someone during probation without any process at all?
If the employee doesn’t have the requisite service for an unfair dismissal claim, terminating their employment during probation without following any process is unlikely to result in liability for unfair dismissal. However, the individual may have other claims that don’t have a qualifying service requirement (such as discrimination or whistleblowing), and so we would recommend that you always follow a process when terminating employment as a fair, documented process protects the company and is also not likely to damage your reputation or employee engagement.
What should I do between now and January 2027?
Look at your current probation and onboarding process, check it reflects a realistic timeline for each role, and make sure managers are documenting check-ins rather than relying on memory. You should also assess the performance of your current employees to ensure you are not carrying performance problems into next year which will be more difficult (and costly) to address.
At New Road Consultancy, we help businesses handle these situations confidently and commercially, from getting your policies and contracts right to advising on a live probation or termination issue. If you'd like to talk through how any of this applies to your business, we're here to help.
This article is for general information purposes only and does not constitute legal advice. Specific legal or strategic advice should be sought separately and tailored to the particular circumstances of your business. If you would like to discuss how these issues apply to your organisation, please get in touch.
