Is probation about to become legally redundant?

From 1 January 2027, the qualifying period for ordinary unfair dismissal is expected to reduce from two years to six months. While this appears to be a simple change in timeframe, it has practical implications for how employers manage probationary periods and early dismissals.

The current law remains a two‑year qualifying period for ordinary unfair dismissal, with the change scheduled to take effect in January 2027 under the Employment Rights Act 2025 (not yet in force).

For many years, employers have operated on the basis that dismissals within the first two years of employment carried limited unfair dismissal risk. Subject to discrimination and other automatically unfair grounds, probationary dismissals were often handled with a relatively light process. That approach will require adjustment once the qualifying period shortens.

The impact on probationary dismissals

Under the new six-month regime, a dismissal shortly after the end of probation, or even during an extended probation, may fall within the scope of ordinary unfair dismissal protection. Employers will need to demonstrate a potentially fair reason and that dismissal was reasonable in all the circumstances.

The practical effect is that probation will no longer operate as a period of minimal procedural risk. While the legal test for unfair dismissal doesn’t change, the point at which it becomes relevant will arrive much sooner in the employment relationship. This is likely to place greater emphasis on early performance management. Informal conversations, if not documented, may carry limited evidential weight.

In this context, employers may need to treat probation more formally. That could include:

• Setting clear objectives at the outset of employment
• Holding structured review meetings
• Providing written feedback and, where appropriate, a reasonable opportunity to improve
• Recording decision-making in a way that can be relied upon if challenged.

None of these steps are new; what changes is the timeline. Employers who previously deferred formal processes until after the first year of employment may need to bring that discipline forward.

How employers may respond

The government has also legislated for a new statutory probationary period with lighter‑touch standards for assessing suitability, with key details to be set in secondary legislation following consultation. Debate materials indicate a preference for a nine‑month statutory probation, but the final duration and rules will be established by regulations closer to commencement.

It’s unlikely that simply extending probation periods will provide meaningful protection. Once six months’ continuous service is reached, the statutory right to claim unfair dismissal will apply, irrespective of contractual labels.

Employers may instead focus on clearer notice provisions, effective use of probation review mechanisms and earlier identification of performance or conduct issues. Some may consider whether fixed-term arrangements are appropriate in certain roles, although these bring their own legal considerations.

The Effective Date of Termination (EDT) will remain significant, particularly during the transition to the new regime. Where an employee’s eligibility depends on a small difference in length of service, the exact termination date will matter. Employers will therefore need to take care when calculating notice, placing employees on garden leave or making payments in lieu, as these steps may determine whether the six-month threshold is met. In most cases, the EDT is the last day of the notice period, or the date of dismissal if no notice is given – for example, where a contractual payment in lieu of notice is exercised.

Practical implications

Reducing the qualifying period to six months is likely to increase the number of unfair dismissal claims brought by short-service employees. Individuals dismissed shortly after probation will have access to tribunal proceedings in situations where previously they wouldn’t.

For employers, this means that decisions taken in the first months of employment may now be examined in detail. The tribunal will expect to see a clear reason for dismissal and evidence that the employer acted reasonably in reaching that decision. Informal discussions, undocumented concerns or abrupt terminations are more likely to create evidential difficulty.

In fact, the practical shift is one of timing. The standards of fairness are not new, but they will apply much earlier in the employment relationship. Employers who adjust their approach to probation accordingly will be better placed to manage exposure.

Conclusion

The reduction of the qualifying period to six months doesn’t remove the value of probation. However, probation will no longer carry the same degree of assumed legal insulation for employers.

Dismissals that once carried limited unfair dismissal exposure will soon fall within statutory protection. Employers who respond by bringing structure, documentation and clarity into the first six months of employment will be better positioned to manage risk. Those who continue to treat probation as a low-risk window may find that assumption increasingly difficult to sustain.

This article was originally authored by Daniel Jagiri, Paralegal in the Employment & Immigration team.