A well-written probation clause will not manage performance for you. With ordinary unfair dismissal rights scheduled to arise after six months’ service from 1 January 2027, employers need a process that identifies concerns early, gives employees a fair opportunity to improve and records the decisions made.
Probationary periods are common in employment contracts, typically lasting between three and nine months. They are intended to give employers time to assess whether a new employee has the capability, conduct and overall suitability needed for the role. Too often, however, the review date goes into the diary and little else happens until the deadline is almost upon the manager.
That approach already creates avoidable risk. It can leave the employee unaware that there is a problem, give them too little time or support to improve, and leave the employer trying to justify a decision without a useful paper trail. The forthcoming reduction in the qualifying period for ordinary unfair dismissal makes early intervention even more important.
What is changing for unfair dismissal in January 2027?
From 1 January 2027, the qualifying period for an ordinary unfair dismissal claim is scheduled to reduce from two years to six months. The statutory cap on the compensatory award for unfair dismissal is also due to be removed. In practical terms, employers will have a much shorter window in which to assess a new employee, address concerns and decide whether employment should continue.
A probationary period is a contractual tool; it is not a separate legal status. Extending probation beyond six months will not delay the point at which the employee obtains the relevant statutory service. Nor does the end of probation create an automatic right to dismiss. The contract, the reason for dismissal and the process followed still matter.
Why early performance management matters
The strongest probation processes are not built around a single pass-or-fail meeting. They create a short, structured period in which expectations are clear, feedback is regular and concerns are addressed while there is still time to do something useful about them.
For employers, this means:
- setting clear and realistic standards from the outset;
- checking progress at planned intervals rather than waiting for the end date;
- raising concerns promptly and giving specific examples;
- providing appropriate support, training and a reasonable opportunity to improve; and
- keeping a clear written record of expectations, feedback, support and decisions.
This does not mean importing an unnecessarily elaborate capability procedure into every probation review. It means using a process that is proportionate, consistent and capable of showing how the employer reached its decision.
Take care with absence, disability and other protected circumstances
Probation clauses often allow the employer to extend the period where an employee has been absent. That may be appropriate, but it should not be automatic. If the absence is connected with disability, pregnancy, maternity or another protected circumstance, the employer should consider discrimination risk, any duty to make reasonable adjustments and whether the proposed approach is fair and proportionate.
An extension should have a clear purpose, a defined length and revised objectives or review dates. Simply moving the deadline without addressing the underlying issue can delay the problem rather than resolve it.
Remember: some claims do not require six months’ service
Even before the qualifying period for ordinary unfair dismissal is reached, an employee may be able to bring other claims. Depending on the facts, these may include discrimination, whistleblowing detriment or automatically unfair dismissal, as well as claims for breach of contract or unpaid wages. Employers should therefore avoid assuming that a dismissal during probation is low risk simply because service is short.
Review your probation process now
The key point is simple: a probation clause is only as effective as the management behind it. Employers that set expectations early, deal with concerns promptly and keep useful records will be better placed to support employees to succeed and to make defensible decisions where performance does not improve.
The difficult part is rarely spotting poor performance. It is knowing what to say, what to record and when waiting any longer becomes the greater risk. On Thursday 10 September 2026, we will work through those decisions with managers and HR professionals.
Book your place: make the next performance conversation count
Have a probation review approaching, or a manager putting off a difficult conversation?
Send us the bare facts. We will help you identify the next sensible step before the timetable starts making decisions for you.
