Probation periods are common in employment contracts, but simply including a probation clause is not enough in order to be effective, the probation period needs to be actively managed.
A well-run probation period allows an employer to assess whether a new employee has the required skills, performance and behaviours, while also giving the employee an opportunity to decide whether the role and organisation are right for them.
There is no legal requirement to have a probation period and no statutory minimum or maximum length. Where probation is used, however, it should be treated as a management process rather than simply a date in the diary.
The legal landscape around dismissal is changing.
Currently, employees in England and Wales generally need two years’ qualifying service to bring an ordinary unfair dismissal claim. From 1 January 2027, this will reduce to six months under the Employment Rights Act 2025.
Employees who already have at least six months’ service on 1 January 2027 will gain the new protection from that date.
This makes effective management during the first few months of employment increasingly important.
Employers should review whether managers are genuinely assessing employees throughout probation or simply treating the final review as a box-ticking exercise.
Employees can still have important legal protections before completing six months’ service, including rights relating to discrimination, whistleblowing and certain automatically unfair dismissals.
A poorly managed probation dismissal can therefore still create significant legal risk.
Effective probation starts at, or before, the beginning of employment.
Managers should clearly explain:
Vague concerns such as saying someone is “not the right fit” are unhelpful. Managers should identify specific issues, explain the required standard and make clear what improvement looks like.
One of the biggest mistakes employers make is waiting until the end of probation before raising concerns.
Probation should include regular check-ins and progress reviews rather than relying solely on a final meeting.
Managers should discuss what is going well, what needs improvement and whether further training or support is required. Those discussions should also be documented and a copy provided to the employee.
If done correctly and probation is ultimately unsuccessful, the decision should not come as a complete surprise.
Performance conversations can be uncomfortable but avoiding them rarely helps.
Concerns should be raised clearly and promptly, with examples and an explanation of what improvement is required and by when.
Have we given this employee the information, training, support and opportunity they reasonably need to succeed?
The purpose of raising a concern should be to give the employee an opportunity to succeed. If someone does not know that there is a problem, they cannot reasonably be expected to address it.
This is particularly important where dismissal is being considered.
Before deciding that an employee has failed probation, employers should consider whether another issue could be affecting their performance, including, but not limited to:
Where an employer knows, or could reasonably be expected to know, that an employee is disabled, the duty to make reasonable adjustments may arise.
Adjustments could include changes to the role, additional equipment or support, different methods of assessing performance or, where appropriate, additional time.
Probation does not operate separately from an employee’s wider statutory rights and therefore you still have to consider and implement reasonable adjustments even during the probation period.
Absence does not automatically mean probation should be extended.
There may already be sufficient evidence to decide whether the employee has successfully completed probation. However, where significant absence has genuinely prevented a proper assessment, an extension may be appropriate.
Take particular care where absence is related to disability or family leave, as failing to extend probation or making an adverse decision could be discrimination.
Probation should not be extended simply because it has not been properly managed. There should be a genuine reason.
An extension may be appropriate where an employee is improving but needs further training, more time is required to assess an aspect of the role, or absence has prevented a meaningful assessment.
Ideally, the contract or probation policy should allow for extensions. Employees should be informed in writing before the original probation period expires and told the length of the extension, expectations, support available, review points and final review date.
With the unfair dismissal qualifying period reducing to six months from January 2027, employers should also avoid allowing probation to drift unnecessarily towards or beyond six months.
Sometimes, despite appropriate feedback and support, it becomes clear that an employee cannot meet the required standard.
Employers do not necessarily have to wait until the scheduled end of probation before acting.
This will usually involve:
If new information arises, such as a previously unknown disability, the employer may need to adjourn and investigate before making a decision.
The employee must also receive the appropriate contractual or statutory notice.
The key message is that probation should not be treated as one meeting held three or six months after an employee starts, instead it is a management process.
Good probation involves:
With the qualifying period for ordinary unfair dismissal falling to six months from 1 January 2027, employers have an additional reason to ensure their probation processes work effectively.
A well-managed probation period is not simply about making dismissal easier. It helps employees understand what success looks like, enables managers to address problems early and improves the chances of a new recruit becoming a successful long-term employee.
“Do we have a probation period?”
It should be:
“Are we actually managing it?”
If you would like further advice around the probation process, then please contact us on 01983 897003 and one of our specialist Lawyers will be happy to assist you.
This article was written by Kathy Lockwood
Appointments are available by telephone or via video call, so no matter where you are in England or Wales we can assist you.
The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.
The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.
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