Should Employers Reduce Probationary Periods Before January 2027?

From 1st January 2027, employees will only need six months’ service to qualify for ordinary unfair dismissal protection. The current qualifying period is two years.

One practical step employers can take in light of this change is to review how they use probationary periods.

Six-month probationary periods

Many employment contracts provide for a six-month probationary period by default. Once the legal change comes into effect in 2027, six months’ probation may no longer be practical, as it will leave little or no time to address concerns before the employee acquires unfair dismissal protection.

Employers should therefore consider whether a shorter probationary period would be more appropriate. For example, they could use a three month probationary period with a right to extend it where more time is needed to assess the employee.

It will be important to manage extensions carefully. In general, the best practice approach would be that an extension is communicated to the employee before the original probationary period expires. The employee should ideally be told why it is being extended, what they need to improve and when their performance will be reviewed again.

Employers should also make sure their managers look to address concerns promptly rather than waiting until the end of probation.

Do not overlook the notice period

Employers should not assume that they can avoid the new qualifying period simply by dismissing an employee immediately before they reach six months’ service.

If an employer dismisses an employee without giving the statutory notice to which the employee is entitled – that statutory notice period can be added when calculating whether the employee has sufficient service to bring an unfair dismissal claim.

For example, an employee with at least one month’s service is normally entitled to at least one week’s statutory notice. This means an employee dismissed without notice shortly before reaching six months could still qualify for unfair dismissal protection.

Employers should therefore take account of statutory notice and avoid leaving probationary decisions until the last few weeks of the six-month qualifying period.

Probation does not remove legal protection

Employees can still bring certain claims without qualifying service – for example, discrimination claims do not require a minimum period of service.

Furthermore, dismissals can still be deemed automatically unfair if it relates to matters including:

• Pregnancy, maternity leave or other family leave, or taking time off for dependents;
• Making a flexible working request;
• Trade union membership or participation in protected industrial action;
• Asserting a legal right, such as the right to receive the National Minimum Wage;
• Whistleblowing;
• Raising health and safety concerns;
• Undertaking jury service.

What should employers do now?

Before January 2027, employers should:

• Review their contracts, particularly the wording covering probationary periods;
• Consider whether the length of probation remains appropriate;
• Include a right to extend probation where needed;
• Consider introducing review points before probation ends;
• Train managers to raise and record concerns promptly; and
• Take account of statutory notice when deciding when action is required.

If you would like advice on updating your employment contracts or probationary procedures, please contact Farleys’ HR & Employment Law team on 01254 606 008 or complete our online enquiry form for support tailored to your situation.