From 1 January 2027, employees with six months’ qualifying service will acquire ordinary unfair dismissal rights. This means that it is becoming even more important to manage new starters carefully and make an early decision about their suitability for continued employment. 

A probationary period and probationary period policy can be invaluable to help employers achieve this. Below, we explore some commonly asked questions.

What is a probationary period and do we need one?

A probationary period is an agreed timeframe during which an employer can assess a new starter’s suitability for the role to which they have been appointed.

Most probationary periods will be successfully completed and the employment will continue. Sometimes, however, an employer may opt to terminate the employment during or at the end of the probationary period if there are concerns about the individual’s suitability for continued employment.

There is no legal requirement to have a probationary period, however including one can be beneficial, particularly in the light of forthcoming changes to the ordinary unfair dismissal rules. To read more about how to prepare, see our Spotlight on unfair dismissal. (Note too that, if you decide to include a probationary period in a contract of employment, there are specific details that need to be provided under section 1 Employment Rights Act 1996 – for details, see Contracts of employment | Make UK.)

Do we need a probationary period policy and what does this typically include?

If you are operating a probationary period for any of your new recruits, we would recommend that you have a probationary period policy. Make UK subscribers can access our template Policy – probationary period and accompanying Induction and probationary periods webpage in our HR and Legal Resources. If you are not a Make UK subscriber, you can purchase our template – please contact us.

A probationary period policy should set out clearly how you will assess an employee’s suitability for continued employment during the probationary period. It will typically include the following:

  • The length of the probationary period and whether it might be extended.
  • Performance expectations and the timing of review meetings.
  • An explanation of what will happen at the end of the probationary period.
  • The process for terminating employment and/or extending the probationary period.
  • How any performance, disciplinary and grievance concerns will be addressed during probation.

Note that our template policy takes a ‘light touch’ approach to performance and disciplinary matters during the probationary period/first six months of employment, disapplying the employer’s usual policies and not following all aspects of the Acas Code of Practice on Disciplinary and Grievance Procedures. This is low risk in respect of unfair dismissal claims, because employees will be managed under this policy only where they are in their probationary period/have less than six months’ service. However, see below for other employment claims that employers may need to consider during the probationary period (What about the risk of claims where there is no qualifying service requirement?).

How long should we make a probationary period?

You will need to consider the length of any probationary period carefully, based on what will work best for your business and the specific role in question. 

We are now generally recommending probationary periods of three to five months; this will give you leeway to extend the probationary period by a short period if needed without the employee gaining ordinary unfair dismissal rights. You will also want to factor in to this the length of employees’ notice periods. (Note however that many employers provide for shorter statutory notice of one week during the probationary period and/or for dismissal on pay in lieu of notice. If dismissing on pay in lieu of notice, remember the statutory rules around adding a notional week of service for the purposes of ordinary unfair dismissal rights.)

Can we terminate employment during the probationary period?

Your probationary period policy should make clear that, if you decide that the employee is not suitable for continued employment, you may terminate the employment on notice (or pay in lieu of notice, where appropriate) during or at the end of the probationary period. Keep in mind though that there are legal risks inherent in any dismissal, so take advice as needed.

The procedure you follow will depend on the procedure in your probationary period policy, if you have one, and whether or not you have disapplied your usual performance management and disciplinary policies for the period that the probationary period policy applies.

As set out above (Do we need a probationary period policy and what does this typically include?), and assuming that the employee will not be eligible to bring an ordinary unfair dismissal claim, our template Policy – probationary period provides for a ‘light touch’ approach to performance and conduct dismissals. However, before taking any decision to dismiss, the employer should still discuss the possibility of termination with the employee at a meeting, and our policy acknowledges that the employee will have the statutory right to be accompanied by a work colleague or an accredited trade union representative of their choice at such a meeting. Our policy also provides that if you do decide to dismiss following such discussion, you should meet with the employee again to give them your decision (or at least adjourn the meeting before doing so) and you should confirm any decision to dismiss in writing.

Do we need to amend other policies to ensure they do not conflict with the probationary period policy?

It is important that whatever approach you take to matters such as performance management, conduct, attendance management, grievances etc, during the probationary period/the first six months of employment, this is consistent between your probationary period policy and your other relevant policies.

For example, and as set out above, our template Policy – probationary period takes the approach that the employer’s usual performance management and disciplinary policies do not apply during the probationary period/first six months of employment. Therefore, if you adopt our template policy or take the same general approach, you will have to ensure that all relevant policies reflect this, making clear in your performance management and disciplinary policies that their provisions are disapplied during the probationary period/the first six months.

What about the risk of claims where there is no qualifying service requirement?

Keep in mind that, even though employees do not have ordinary unfair dismissal rights during their first six months’ employment, they may be entitled to bring other employment law claims, which do not require any qualifying period of service. For example, employees have the right to bring most automatically unfair dismissal claims (such as dismissal for asserting a statutory right and whistleblowing dismissals) and discrimination claims from day one of employment. With these risks in mind, if during a probationary period you are concerned about a possible dismissal leading to a claim, and particularly where you follow the ‘light touch’ approach to performance and disciplinary matters set out in our template Policy – probationary period, we advise you to pause to consider the best way forward in the circumstances. Our Make UK advisers can help you to evaluate different approaches in the particular circumstances.

How Make UK can help

If you are a Make UK subscriber, you can speak to your regular adviser with any queries you may have in relation to probationary periods and/or early termination of employment.  Our HR consultancy team also has a wealth of experience in this area. Make UK subscribers can access guidance on this and a wide range of employment law topics, including template policies and drafting guidance, in the HR and Legal Resources section of our website.

If you are not a Make UK subscriber, you can contact us for further support. Please click here for information on how we can help your business.

Note that the unfair dismissal reforms form just one element of the changes under the Employment Rights Act. To read about other changes, see our Employment Rights Act Knowledge Base.