Date
06 May 2026Updated
06 May 2026
8 min read
Employers do not usually need to shorten probationary periods because of the recent unfair dismissal reforms. The more important issue is whether probation is being used properly, with clear expectations, regular review points, written records and a fair decision-making process.
Why this Question is Being Asked?
For a long time, many employers viewed probationary dismissals as relatively low risk because ordinary unfair dismissal protection generally did not apply until an employee had two years’ service. That position is changing under the Employment Rights Act 2025, which provides that from 1 January 2027 employees will gain protection from ordinary unfair dismissal after six months in the job rather than two years.
That change matters. It brings unfair dismissal risk much closer to the point at which many employers are still deciding whether a new hire is the right fit. It also means that businesses which have allowed probation to drift informally, or treated it as a simple administrative marker, are more likely to face challenge if a dismissal happens later in the first year of employment.
There is also a separate practical point. Although the original policy discussion focused on day one unfair dismissal rights, that proposal was changed before implementation. Acas confirms that the final position is a six-month qualifying period from 1 January 2027, not a universal day one right to bring an ordinary unfair dismissal claim.
Should You Reduce Probationary Periods Because of the Unfair Dismissal Changes?
The sensible employer response is not to reduce probationary periods in a rush. In most organisations, shortening probation would remove valuable assessment time without actually solving the underlying legal risk.
Probation is still useful because it creates a defined period for testing suitability, setting expectations, addressing performance or conduct concerns early and deciding whether employment should continue. None of those functions becomes less important because unfair dismissal protection moves to six months; if anything, they become more important because the quality of the process will carry more legal weight.
In practice, a shorter probation period can create avoidable problems. It may encourage managers to make decisions too quickly, before enough evidence has been gathered, or it may force the employer to confirm employment before there has been a proper opportunity to assess performance, attendance, conduct, attitude and overall fit.
The better view is that employers should keep probationary periods commercially sensible for the role, but tighten the process around them. For many businesses that will still mean three months, six months, or a period that can be extended where the contract allows.
What Has Actually Changed in Law in Regards to Unfair Dismissal?
The key legal point is straightforward. Acas states that from 1 January 2027 protection from unfair dismissal will arise after six months of employment, and the limit on the compensatory award for unfair dismissal will be removed.
That does not mean probation clauses disappear, and it does not mean employers cannot dismiss during probation. It means that timing alone will no longer provide the same level of comfort once the employee reaches six months’ service, so employers will need better evidence, better management and more consistent procedures.
Employers should also remember that even now, probation has never been a legal free pass. Employees already have day one protection against discrimination and dismissal for certain automatically unfair reasons, and those rights were expressly preserved when the government confirmed the six-month model.
This is important because many probationary dismissals become risky for reasons unrelated to ordinary unfair dismissal. The real exposure often comes from disability, pregnancy, whistleblowing, trade union activity, asserting a statutory right, or a failure to pay proper notice. A weak probation process tends to increase those risks because the employer has not properly identified the real issue, tested the facts, or recorded the rationale for the decision.
Why Shortening Probation is Usually the Wrong Approach for Unfair Dismissal
A rushed reduction in probation length often solves the wrong problem. If the concern is that unfair dismissal rights will arise earlier, reducing probation from six months to three months does not remove the need for fair handling. It simply shifts the confirmation point earlier and may leave the employer with less flexibility, not more.
There is also a practical management point that employers sometimes overlook. Many problems do not become obvious in the first few weeks. Performance concerns may only emerge once induction ends, attendance issues may appear over time, and conduct or attitude concerns often become clearer once the employee is embedded in the team. A sensible probation period gives room to assess those matters properly.
For some employers, especially in senior, technical or client-facing roles, six months may remain entirely appropriate. For others, three months with a contractual right to extend may be enough. The legal answer is not that one period is universally correct; it is that the chosen period should match the role and should be backed by a process that managers can realistically deliver.
The Real Risk Areas for Employers in Regards to Unfair Dismissal
The highest risk is not having a probation clause that is too long. The highest risk is having a poor probation process and assuming that “it is only probation” means the business can act informally.
Common examples include no proper induction, unclear objectives, no recorded review meetings, vague criticism, inconsistent treatment between employees, late decisions made after the probation period has already expired, and dismissal letters that give no coherent reason. Those gaps make it harder to defend the employer’s decision and easier for the employee to argue that the dismissal was arbitrary, discriminatory or procedurally unfair.
Another risk is contract design. If the contract does not clearly set out the probation period, any right to extend it, the notice arrangements that apply during probation and the standards the employee is expected to meet, the employer may find itself arguing over basic points that should have been clear from the outset.
A further difficulty arises where line managers are left to handle probation without guidance. The legal team or HR function may assume the process is straightforward, but tribunals often examine what actually happened in practice. If managers have not been trained to raise concerns early, document discussions and give the employee a fair chance to respond, the paperwork created at the end may not rescue the position.
How Employers Should Prepare for Day One Unfair Dismissal Rights
The best preparation is to review probation as a system rather than just a clause. Employers should check whether contracts, onboarding, manager guidance and dismissal procedures all work together in a way that is clear, consistent and realistic.
A practical preparation plan should include:
- Reviewing employment contracts to confirm the probation period is clearly stated, together with any right to extend and any shorter notice period that applies during probation.
- Checking whether probation review dates are diarised automatically rather than left to chance.
- Making sure managers know what standards the employee is being measured against, especially around performance, conduct, attendance, attitude and training completion.
- Using simple review templates that record concerns, support offered, targets set and follow-up dates.
- Ensuring decisions are taken before probation expires, or formally extending probation where the contract permits and the circumstances justify it.
- Aligning probation dismissals with a basic fair process, particularly where concerns relate to conduct or capability.
This does not require employers to create a heavy, bureaucratic regime. In most businesses, a well-run probation process can remain light-touch while still being structured enough to show fairness and consistency.
A Practical Probation Model
A defensible probation model is usually simple. The employee should know what is expected, managers should review progress at planned intervals, concerns should be raised early rather than saved for the end, and any dismissal decision should be reasoned and documented.
In practical terms, that often looks like this:
- At the start of employment: confirm the length of probation, the review schedule, the standards required, and any key objectives or training milestones.
- Early review point: hold a short meeting after the first few weeks to identify any immediate concerns and provide support where needed.
- Mid-point review: assess whether the employee is on track, record any shortcomings and set clear improvement expectations.
- Final review before expiry: decide whether probation should be passed, extended or ended, based on evidence rather than assumption.
- Decision and letter: confirm the outcome in writing, including the reason, notice arrangements and any next steps.
Where concerns are serious, the employer may move more quickly. But even then, the core principles remain the same: identify the issue, explain it, listen to the employee’s response, and make a measured decision.
Process Still Matters During Probation
Employers sometimes assume that a probation dismissal can be handled with little more than a brief meeting and a short letter. That can be risky, especially where the dismissal may touch on misconduct, poor performance linked to ill health, or a potentially protected characteristic.
Acas makes clear that employers should prepare for the legal changes and consider their impact on the organisation. That broad message is important because it points away from improvisation and towards planning, consistency and manager capability.
A sensible minimum approach in most cases includes telling the employee what the concern is, inviting comment, considering any explanation, checking for underlying issues such as disability or pregnancy, and confirming the outcome in writing. Even where a full disciplinary or capability process is not required, that basic fairness can significantly reduce legal and employee relations risk.
Contractual Points Employers Should Revisit
Now is a good time to revisit the wording of probation clauses. A clause should not just say that employment is subject to a probationary period; it should explain how long that period lasts, whether it can be extended, what notice applies during probation, and whether successful completion changes notice or other contractual benefits.
The notice point is especially practical. If employers want the ability to exit quickly where a new hire is clearly not suitable, the contract should usually provide for a shorter notice period during probation, subject always to minimum statutory rights.
The clause should also fit with the employer’s actual practice. A well-drafted probation clause is of limited value if managers routinely miss review dates, fail to extend probation properly or confirm employees by silence. Processes and documentation must support the wording.
Practical Solutions for Common Probation Problems
Where managers say they are too busy to run probation properly, the solution is usually simplification rather than abandonment. Short review templates, automatic calendar prompts and standard letters can make a major difference without creating unnecessary paperwork.
Where the issue is inconsistent manager capability, targeted training is often the best investment. Managers should understand what probation is for, how to raise concerns constructively, when to involve HR, and why records matter.
Where the organisation is worried about claims, the answer is not to paper over problems with vague wording. It is better to create a clear audit trail showing what standards were expected, what concerns arose, what support was offered and why the final decision was taken.
Employers should also be realistic about extensions. An extension can be helpful where there is genuine uncertainty and the contract allows it, but it should not be used as a substitute for decision-making. If the employee has not been managed properly during probation, simply extending without a clear reason and plan may store up a later dispute.
Recommended Employer Actions in 2026
Before the January 2027 unfair dismissal changes take effect, employers should use 2026 to pressure-test their current approach. Acas expressly says employers should consider the impact of the Act and prepare for the changes, and that is best done before the new regime goes live.
A sensible action list is:
- Audit probation clauses across template contracts and offer letters.
- Check whether probation review processes are actually followed in practice, not just written in a handbook.
- Update manager guidance and provide short, practical training.
- Create or refresh probation review forms, extension letters and outcome letters.
- Review dismissal processes for employees approaching six months’ service, especially where concerns have been allowed to drift.
- Build in an escalation point to HR or legal review before dismissing employees with possible protected characteristics or whistleblowing issues.
The Key Message for Employers
Employers should resist the temptation to treat probation length as the main issue. The better question is whether the organisation can show a sensible, fair and well-documented approach to assessing new hires and making decisions during the first six months of employment.
In most cases, there is no need to reduce probationary periods simply because unfair dismissal protection will arise earlier than before. The stronger response is to tighten contracts, train managers, improve review points and make sure probation decisions are taken deliberately rather than by default.
That approach is more practical, more defensible and more commercially sensible than rushing to shorten probation in the hope that it will remove legal risk. It will not remove risk entirely, but it will put employers in a much better position to manage it.
