For many employers, probationary periods are an established part of the recruitment process. They provide an opportunity to assess whether a new employee is the right fit for the role, the business, and the wider team.
However, with significant changes to unfair dismissal rights set to take effect on 1st January 2027, employers should review their current approach to probationary periods now.
Under current rules, employees generally need two years’ continuous service before they can bring an ordinary unfair dismissal claim. This has given employers a relatively long period in which to assess a new recruit’s suitability and, where necessary, terminate employment with limited risk of an unfair dismissal claim.
This position is set to change dramatically from January, when the qualifying period for bringing an unfair dismissal claim will be reduced to six months’ service.
While the change formally takes effect at the beginning of 2027, employers need to be thinking about its practical impact much sooner.
In reality, any employee who starts employment on or after 1st July 2026 will have accrued six months’ service by 1st January 2027.
This means that employers recruiting during the second half of 2026 will need to ensure that any concerns about performance, capability, conduct or suitability are identified and addressed well before the new protection becomes available.
Against that backdrop, we would recommend that employers adopt a three-month probationary period for new starters from now on.
Recommended Probationary Periods Going Forward
A three-month probationary period provides a sensible balance between giving employees sufficient time to settle into the role and permitting employers to make an informed assessment of their performance. It also creates a valuable window in which any issues can be identified and managed at an early stage.
Importantly, a three-month probationary period still leaves room for an extension where there are genuine concerns or uncertainties. In many cases, an additional one or two months will be enough to determine whether the employee is likely to meet the required standards in the longer term.
By starting with a shorter probationary period, employers retain flexibility while making sure that decisions are not left until it is too late. Bearing in mind that the calculation of six months must include the one-week statutory notice, in almost all cases. So, in practical terms, notice must be given by the latest at five and a half months, with any notice ending before the six-month deadline.
The key message is that probationary periods should not be viewed as a formality. Managers should hold regular review meetings, set clear objectives, give constructive feedback, and maintain appropriate records of discussions and performance concerns. If problems arise, they should be addressed promptly rather than postponed until the end of the probationary period.
Best Practices During the Probationary Period
Employers also need to be mindful that many scenarios can trigger an employment claim from day one, such as discrimination, whistleblowing, or exercising a statutory right are notable examples.
Probationary decisions must be based on performance, and any decisions must be supported by evidence of where an employee has fallen short and the steps taken to assist them.
Recruiting the right candidate, making reasonable adjustments if necessary, and using the full probationary period to ensure they develop and succeed is the best approach for all involved.
Now is the ideal time to review employment contracts, probationary procedures and onboarding processes. A well-managed three-month probationary period, with the option to extend where necessary, is likely to become an increasingly important tool for employers seeking to make confident recruitment decisions while managing legal risk in the changing employment law landscape.
If you have any queries in relation to this or any other employment law issue, please email tcms@thomas-carroll.co.uk and our employment specialists will be happy to help.
