Many employers assume that employees can be dismissed at any time during their probationary period without following a formal process. However, while employers generally have greater flexibility when dismissing new employees, this does not mean they can ignore their legal obligations.
Probationary periods allow employers to assess whether a new employee is suitable for a role, taking into account their performance, conduct and overall suitability.
However, employees on probation still benefit from important employment rights, and changes introduced by the Employment Rights Act 2025 will make it easier for employees to bring ordinary unfair dismissal claims from January 2027.
Understanding the rules surrounding dismissal during probation is therefore important for both employers and employees.
Keep reading to find out the current rules around dismissing an employee during probation as well as what is set to change for employers and employees alike when new measures included in the Employment Rights Act 2025 are introduced.
Can an Employer Dismiss an Employee During Probation?
Yes. Employers can generally dismiss employees during their probationary period if they are not satisfied with their performance, conduct or suitability for the role.
Probationary periods are commonly included in employment contracts and give employers an opportunity to assess new starters before confirming their ongoing employment. They can also provide an opportunity to identify concerns early and give employees additional support or training where necessary.
However, being on probation does not remove an employee’s legal protections. Employers must still comply with relevant employment legislation and the terms of the employee’s contract.
For example, an employer cannot lawfully dismiss someone because they have raised concerns about workplace discrimination, reported wrongdoing or exercised certain statutory employment rights. Depending on the circumstances, doing so could result in an employment tribunal claim.
How Does the Employment Rights Act 2025 Change Unfair Dismissal Rights?
One of the most significant changes introduced by the Employment Rights Act 2025 concerns the qualifying period employees must complete before they can bring an ordinary unfair dismissal claim.
Under the current rules, employees generally need two years of continuous service with their employer before they can claim ordinary unfair dismissal. This means that many employees dismissed during probation, which often lasts between three and six months, will not qualify for this protection.
However, from 1 January 2027, the qualifying period for ordinary unfair dismissal protection will be reduced from two years to six months.
This represents a significant change for employers, particularly those who routinely use probationary periods when recruiting new staff.
The change does not mean probationary periods are being abolished or that employers will no longer be able to dismiss employees who fail to meet the required standards. Instead, employees will gain protection against ordinary unfair dismissal much earlier in their employment.
The change will also apply to employees who have already completed six months of continuous service by 1 January 2027. The existing cap on compensatory awards for successful ordinary unfair dismissal claims will also be removed from this date.
For employers, this means that probationary periods and dismissal procedures may need to be reviewed to ensure decisions are made fairly and in accordance with the law.
What Legal Protections Do Employees Have During Probation?
Although employees may not qualify for ordinary unfair dismissal protection during their first six months of employment, they are not without legal rights.
Certain protections apply from the beginning of employment, regardless of how long someone has worked for their employer.
These include protection against discrimination under the Equality Act 2010. Employers cannot lawfully dismiss employees because of protected characteristics such as age, disability, race, religion or sex.
Employees are also protected against dismissal for certain automatically unfair reasons. These can include:
- Whistleblowing, such as reporting suspected wrongdoing in the workplace.
- Exercising certain statutory employment rights.
- Taking certain types of family-related leave.
- Raising health and safety concerns.
- Trade union membership or activities in circumstances protected by law.
Unlike ordinary unfair dismissal claims, many automatically unfair dismissal claims do not require employees to have completed a minimum period of service.
This means an employer could face legal consequences for dismissing someone during probation if the reason for doing so falls within one of these protected categories.
Do Employers Need to Follow a Formal Dismissal Procedure During Probation?
Employers do not necessarily need to follow the same lengthy procedures when dismissing an employee during probation as they might when dismissing a longer-serving member of staff. However, taking a fair and reasonable approach is still important.
Before making a decision, employers should explain any concerns about the employee’s performance or conduct and give them a reasonable opportunity to respond. They should also consider whether additional training, support or an extension to the probationary period could help the employee improve.
If dismissal is ultimately necessary, the employer should communicate the decision clearly, preferably in writing, explaining the reasons for ending the employment.
Employees also have a statutory right to request to be accompanied at meetings that could result in dismissal, although this right may not apply to every probation review meeting.
Following a consistent and well-documented process can help employers demonstrate that decisions have been made carefully and reduce the risk of disputes further down the line.
Are Employees Entitled to Notice During Probation?
Yes. Employees are generally entitled to notice when their employer terminates their employment during probation.
The notice period will usually be determined by the employee’s employment contract. Some employers provide shorter notice periods during probation, while others apply the same notice arrangements throughout employment.
However, statutory minimum notice requirements also apply. Once an employee has completed at least one month’s continuous service, they are generally entitled to a minimum of one week’s statutory notice if their employer dismisses them. This increases with length of service, up to a maximum of 12 weeks.
An exception may apply where an employee is dismissed summarily for gross misconduct, provided the circumstances legally justify dismissal without notice.
Employees should therefore check their employment contract to understand their notice entitlement and whether any additional contractual provisions apply.
What Should Employers Do Before Dismissing an Employee During Probation?
With the Employment Rights Act 2025 reducing the qualifying period for ordinary unfair dismissal claims to six months from January 2027, employers should review their existing probationary procedures.
Businesses should consider whether their current probationary periods and performance management processes provide sufficient time to assess new employees and address any concerns.
Employers may also wish to review their employment contracts, staff handbooks and dismissal policies to ensure they reflect the changing legal requirements.
Importantly, shortening a probationary period or dismissing an employee before they reach six months of service should not be treated as a way of avoiding employment law obligations. Other legal protections continue to apply from the beginning of employment.
A consistent and well-documented approach to managing probationary employees can help businesses make informed decisions while reducing the risk of costly employment disputes.
How Can Lisa’s Law Help?
Although dismissing an employee during probation can be relatively straightforward, employers must still comply with their contractual and statutory obligations.
The Employment Rights Act 2025 will introduce further changes to unfair dismissal protections from January 2027, making it increasingly important for businesses to understand their responsibilities when managing new employees.
At Lisa’s Law, our legal team can provide advice and assistance to both employers and employees on employment law matters, including probationary dismissals, unfair dismissal claims and contractual disputes.
If you are facing an employment-related issue or need advice about your legal rights and responsibilities, contact Lisa’s Law to discuss your situation.
Need legal advice? We’re here to help.
If you have questions about your situation or need advice on your next steps, our experienced legal team can help.
Call us on 020 7928 0276 between 9:30am and 6:00pm, or email [email protected].
You can also contact us online by completing our short enquiry form. Tell us a little about your situation and we’ll get back to you as soon as possible.
Not sure which service you need? Get in touch and we’ll help you identify the right team.
