The Employment Rights Bill, now largely enacted through the Employment Rights Act 2025, represents a significant shift in employment law, particularly in relation to unfair dismissal rights and the way employers manage probation periods.
One of the most important changes for employers will be the reduction in the qualifying period for unfair dismissal claims. While this is likely to come into force from January 2027, organisations should be preparing now, as the practical implications for recruitment, onboarding, performance management and dismissal processes are considerable.
The current position
At present, most employees must complete two years’ continuous service before they can bring an ordinary unfair dismissal claim.
Historically, employers have relied on this qualifying period as a form of protection. During probation – typically lasting between three and six months – employment can usually be terminated with relatively low legal risk, provided the reason is not discriminatory or automatically unfair.
This framework has often allowed employers to treat probation as a relatively informal assessment stage, with decisions about suitability developing gradually over time.
What is changing?
From January 2027 the qualifying period for unfair dismissal claims is expected to reduce to six months. This means probation periods will effectively overlap with the point at which employees acquire statutory protection.
For employers, the consequence is clear: there will be a much narrower window in which to assess suitability of new starters and where appropriate, consider whether to terminate employment with a reduced legal risk.
A “wait and see” approach to probation will no longer be viable.
Why structured probation processes will matter more than ever
The shortened timeframe means probation periods are likely to become a critical legal and operational milestone rather than a largely informal assessment stage.
Employers will increasingly need to
- Set clear performance expectations from day one
- Conduct regular, documented reviews
- Act promptly where concerns arise
- Make firm decisions before the six-month threshold
Where concerns about capability, conduct or suitability emerge, employers will need to respond far more quickly than is currently the norm, and delayed action or inconsistent management may expose organisations to greater legal risk.
In practical terms, probation periods will need to be actively managed, with decisions about employee suitability made much earlier in the employment lifecycle.
The end of informal probation management?
For many employers, probation management has traditionally involved relatively light-touch processes – eg limited documentation, ad hoc feedback and inconsistent review meetings. This approach is no longer acceptable.
A reliance on informal probation management – minimal documentation, inconsistent reviews, or ad hoc feedback – will place employers at risk of employment tribunal claims as employees acquire rights earlier in their employment.
Instead, employers will need to adopt a more disciplined and consistent approach to performance management during probation, supported by clear records and well documented decision-making.
Reduced flexibility in early-stage dismissals
There will be less flexibility for employers seeking to dismiss employees during probation without following a fair process.
To prepare for the changes, organisations should already be considering
- A review of probation policies
- Updating disciplinary and dismissal procedures
- Strengthening documentation and record-keeping practices
- Ensuring managers understand how to manage performance concerns early
If employers haven’t already started to prepare for the new legal landscape already, our advice is that they commence this process without further delay and as a matter of urgency.
What employers should be doing now
For many organisations, these reforms will require a fundamental rethink of how probation periods are developed and managed.
Key adjustments may include
- Introducing shorter or more flexible probation periods (eg, three to four months with extension options) to allow decisions before the six-month threshold
- Enhancing manager training on performance management and documentation needed
- Strengthening onboarding processes to give employees a fair opportunity to succeed while ensuring suitability for the role
- Creating clear evidence demonstrating fair treatment and reasonable decision-making
Organisations that begin adapting now will be better placed to implement changes smoothly and reduce future risk.
Final thoughts
The Employment Rights Act 2025 will significantly transform the way probation periods work.
Instead of being viewed as a relatively low-risk trial period, probation will be a legally significant phase of employment.
The message for employers is clear, probation periods will need to be actively managed, carefully monitored and documented, and aligned with fair dismissal principles from the outset. As the margin for error narrows, informal practices will carry far greater legal risk.
While implementation may still be some way off, employers that prepare early will be in a much stronger position when the changes take effect.
