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Sometimes, when you hire a new employee, it doesn't work out. Whether it's poor performance, conduct issues, or lack of ability for the role, there may come a point where you need to dismiss an employee during probation. Naturally, probation periods are designed to allow both employers and employees to assess whether they are the right fit for the role. However, this does not remove an employer's legal responsibilities.
(Government Guidelines)

Many employers mistakenly believe they can dismiss an employee during probation without following any formal process. Unfortunately for them, this is not the case. UK employment law provides employees with a range of statutory protections from their first day of employment. Indeed, the Employment Rights Act 2025 introduced significant reforms to UK employment law to protect employees. Many of the new act's provisions are being implemented in stages throughout 2026 and 2027. However, all employers need to review their probationary processes now to ensure they remain compliant with both current law and the forthcoming changes. This will help organisations avoid unnecessary legal and financial risks.

In this guide, we'll explain what a probation period is and when you can dismiss an employee during probation. We will highlight the legal obligations you need to be aware of, how the Employment Rights Act 2025 will affect probationary dismissals, and the practical steps employers should take to minimise risk while also treating employees fairly.

What Is A Probationary Period?

A probationary period is an agreed-upon period set at the beginning of employment. During this time, both the employer and employee can assess whether the working relationship is the right fit.

Probationary periods vary between organisations as there is no statutory definition of a probation period under UK employment law.

A probation period allows employers to evaluate an employee's:

• Performance and productivity
• Skills and competence
• Attendance and punctuality
• Conduct and professionalism
• Ability to integrate into the team
• Overall suitability for the role

Similarly, it allows employees time to decide whether their new role, working environment, and organisation meet their expectations.

How long should a probation period be?

There is no legal minimum or maximum probation period. For most roles, three months is sufficient, particularly where employees receive a structured induction and regular feedback. More complex or specialist roles may justify a six-month probation period. Whatever length you choose, it should be reasonable for the role and clearly stated within the employment contract. Employers should also specify whether the probation period can be extended and in what circumstances.

Can You Extend a Probation Period?

Yes, provided your employment contract allows for it. Before you dismiss an employee during probation, consider extending probation where appropriate if the employee has shown potential but requires additional time to demonstrate they can meet the required standards.

Before extending probation, employers should:

• Explain why the extension is necessary
• Set clear objectives
• Confirm the length of the extension
• Provide any additional support or training
• Confirm everything in writing

Plan Probation Reviews Before The End Date
One thing I always tell clients...
Don't let probation simply expire.

One of the most common mistakes employers make is allowing probation periods to expire without formally reviewing them. Diarise review dates well in advance so you can decide whether to confirm employment, extend probation (where permitted), or bring employment to an end.

Make It Contractual

As there is no statutory guidance for a probationary period, employers should clearly set out the following information within their contractual agreement:

• The length of the probationary period
• Whether the probation can be extended
• Notice periods during probation
• The standards expected of the employee
• How performance will be assessed

Having clear contractual terms (as outlined by the Government) from the outset ensures expectations can be managed. It also offers greater certainty for both the employer and the employee, should issues arise later.
What Happens When an Employee Passes Probation?

Where an employee has successfully completed their probation period, employers should confirm this in writing. This provides clarity for both parties and confirms that the employee has met the required standards. If contractual terms such as notice periods or benefits change after probation, this should also be confirmed.
Am I Able to Dismiss an Employee During Probation?

Yes, in most cases, you can dismiss an employee during probation if there is a genuine business reason for doing so.

Common reasons include:

• Poor performance
• Unsatisfactory conduct
• Poor attendance
• Lack of capability
• Failure to meet required standards
• Incompatibility with the role or organisation

If you wish to dismiss an employee during probation, it is generally more straightforward than dismissing an established employee. However, it is not a process you should approach lightly.

Employers are legally bound by:

• The terms of the employment contract
• The Employment Rights Act 1996
• The Equality Act 2010
• Health and safety legislation
• Statutory notice requirements where applicable
• Any contractual, disciplinary or probation procedures

Therefore, probation does not remove an employee's legal rights. Equally, it does not give employers unlimited discretion to terminate employment without considering the circumstances.

List of Reasons for Dismissing an Employee During Probation.

If you dismiss an employee during probation, you must have a legitimate business reason supported by evidence wherever possible. Here are some of the most common reasons:

Poor Performance

Arguably, this is one of the most common reasons employers use to dismiss employees during probation.

Examples include:

• Consistently failing to meet agreed objectives
• Producing work below the expected quality
• Repeated mistakes despite coaching
• Difficulty carrying out key responsibilities
• Inability to work independently after appropriate training

It is best practice to discuss performance concerns throughout the probationary period, rather than just raising them for the first time at the end. Provide regular feedback to the employee, ensuring they understand clearly what improvements they must make. Keeping a record of these performance reviews also illustrates that an employer has acted reasonably.

Capability

Someone may be a hard worker with a positive attitude; however, if they lack the skills or experience required for the position, you may wish to dismiss an employee during probation.

Capability issues may include:

• Insufficient technical knowledge
• Difficulty adapting to specialist software or systems
• Poor decision-making
• Lack of confidence in carrying out essential duties

Probation periods exist precisely to identify situations when an employee is not the right fit for the role, despite everyone's best efforts.

Conduct Issues

You may wish to dismiss an employee during probation if you have concerns about their behaviour.

Behavioural problems may include:

• Persistent lateness
• Failure to follow reasonable management instructions
• Breaches of company policies
• Unprofessional behaviour towards colleagues or customers
• Misuse of company equipment

When their misconduct is less serious, an employer should normally discuss their concerns with the employee first. This provides an opportunity for them to improve.

Attendance Concerns

Employers naturally expect reliable attendance from their team. If an employee is repeatedly absent or late without reasonable explanation, employers may conclude they are unsuitable for their organisation. However, employers must show caution when absences relate to:

• Disability
• Pregnancy
• Long-term health conditions
• Family-related statutory rights

These situations may involve additional legal protections, meaning dismissal requires careful consideration.
What Rights Do Employees Have During Probation?

Whilst probationary employees may have fewer protections against ordinary unfair dismissal, they benefit from a wide range of statutory rights from the very beginning of their employment.

These include protection against:

• Discrimination
• Harassment
• Victimisation
• Unlawful deductions from wages
• Breach of contract
• Health and safety detriment
• Whistleblowing detriment
• Certain forms of automatic unfair dismissal

Consequently, an employer cannot lawfully dismiss an employee during probation because of a protected characteristic or because they have exercised certain statutory rights

For example, dismissal may be unlawful if it is connected to an employee's:

• Pregnancy or maternity
• Disability
• Age
• Sex
• Race
• Religion or belief
• Sexual orientation
• Gender reassignment
• Marriage or civil partnership (in limited circumstances)

Similarly, employees who raise genuine health and safety concerns, or make protected disclosures (commonly referred to as whistleblowing), benefit from legal protection regardless of their length of service.

How Does the Employment Rights Act 2025 Affect Probationary Periods?

The Employment Rights Act 2025 is overhauling UK employment law both currently and throughout 2027. The changes are spread over a set period to allow employers the opportunity to update their systems, contracts, policies, and HR procedures.

Unfortunately, the phased implementation is causing some confusion, particularly around probation dismissals.

For example, some reports have incorrectly suggested that all employees now have "day one" protection against ordinary unfair dismissal. That is not the current legal position. As of July 2026, employees continue to require completion of the statutory qualifying period before they can generally present an ordinary unfair dismissal case. In practice, this means employers should not be complacent. Strengthen your probationary processes now by:

• Setting clear performance expectations from day one.
• Holding regular probation review meetings.
• Keeping accurate records of discussions and performance concerns.
• Providing appropriate support and training.
• Ensuring managers understand the difference between poor performance, misconduct and discrimination issues.
• Reviewing employment contracts and probation policies to ensure they remain fit for purpose.

Taking these steps now, employers will be better prepared when the remaining provisions of the Employment Rights Act 2025 are introduced.

Why Does Following a Fair Process Matter?

Adopting a fair and consistent approach is one of the best ways to reduce legal risk and demonstrate good employment practice. Moreover, a poorly handled dismissal can have far-reaching consequences. It may damage your brand, affect the team morale, and make it harder to recruit talented individuals in the future.

For these reasons, employees should view probation not simply as a trial period, but as a structured opportunity to support new employees, identify any concerns early, and make informed decisions based on evidence, rather than assumption.

How to Fairly Dismiss an Employee During Probation

It is best practice to follow a fair and consistent process before deciding to dismiss an employee during probation. Although the statutory Acas Code of Practice will not apply in every probationary dismissal, following the principles of fairness set out in Acas guidance can help employers make reasonable, well-informed decisions whilst reducing the risk of disputes. Not only will this reduce the risk of legal complications, but it also demonstrates that your organisation is committed to treating employees fairly and professionally.

Having a structured process in place also helps managers to make objective decisions based on evidence, rather than assumptions or isolated incidents.

1. Hold Regular Probation Review Meetings

As we have mentioned earlier. Do not wait to see if your new employee fits in with their role and your company. Schedule regular meetings. This allows both management and the employee to discuss progress, identify concerns, and agree on any support that may be required.

When performance or conduct issues are highlighted as an area for concern, managers should:

• Clearly explain the concerns.
• Provide specific examples.
• Set realistic improvement objectives.
• Agree timescales for review.
• Offer additional training or support where appropriate.

Do not wait until the end of the probation period to do this; otherwise, employees may believe they were never given a fair chance to succeed.

2. Keep Clear Written Records

Keep written records; they are the best safeguards a manager can have.

Retain records of:

• Probation review meetings.
• Performance objectives.
• Attendance discussions.
• Training provided.
• Coaching or support offered.
• Emails confirming expectations.
• Notes of any conduct concerns.

3. Allow the Employee to Respond

Before you make a final decision on an employee's progress during their probation period, invite them to a probation review meeting to discuss your concerns and allow them to respond.

There may be underlying factors affecting their performance that you were previously unaware of. These might include:

• A health condition.
• A disability requiring reasonable adjustments.
• Personal circumstances affecting performance.
• A misunderstanding regarding expectations.
• Insufficient training or support.

Listening to the employee's perspective is good practice. Likewise, it may also identify an issue that requires a different approach.

4. Consider Whether Reasonable Adjustments Are Required

If you discover the employee has a disability, for example, you have a legal duty to consider reasonable adjustments where appropriate. These might include:

• Additional training.
• Modified duties.
• Specialist equipment.
• Flexible working arrangements.
• Adjusted performance targets where reasonable.

If you dismiss an employee during probation without considering reasonable adjustments, you could expose an employer to a disability discrimination claim. This is regardless of the employee's length of service.

5. Confirm the Decision in Writing

If you decide to dismiss an employee during probation, confirm the decision in writing.

The letter should include:

• The reason for dismissal.
• The employment end date.
• Notice arrangements.
• Details of any outstanding pay and accrued holiday entitlement.
• Information about returning company property.
• Whether the employee has the right to appeal (if your policy provides for this).

Providing a clear written outcome reduces the risk of misunderstandings and creates an accurate record of the decision.

Can You Dismiss an Employee Immediately?

Unless the dismissal relates to gross misconduct, employers should normally give the contractual or statutory notice to which the employee is entitled.

Immediate dismissal without notice is generally reserved for cases of gross misconduct. This is when an employee's actions are so serious that continuing the employment relationship is no longer reasonable,

Examples may include:

• Theft.
• Fraud.
• Physical violence.
• Serious bullying or harassment.
• Deliberate damage to company property.
• Serious breaches of confidentiality.
• Serious breaches of health and safety procedures.

Even when gross misconduct appears obvious, employers should still carry out a reasonable investigation before making the decision. Acting quickly without establishing the facts can significantly increase legal risk.

HR Best Practice for Managing Probation Successfully

The best probationary processes focus on helping new employees succeed. No one really wants to dismiss an employee during probation. So, here are our 5 probation best practice tips:

• Set clear expectations from day one.
• Hold regular review meetings.
• Give honest, constructive feedback.
• Keep written records throughout.
• Don't let probation expire without making a decision.

This ensures employees know what is expected of them, allowing them to progress successfully. Likewise, when you need to dismiss an employee during probation, you will be able to demonstrate that the decision was based on evidence and a fair process.

In Conclusion

Being able to dismiss an employee during probation gives employers valuable flexibility, but it should never be viewed as a shortcut around employment law.

A probationary period is an opportunity to assess whether a new employee is the right fit for your organisation whilst providing them with support, feedback, and guidance to succeed. When concerns arise, employers should act promptly, communicate openly and make decisions based on evidence rather than hearsay or assumptions.

With the Employment Rights Act 2025 continuing to reshape the UK's employment law, probationary processes are more important than ever. It is time to review your contracts, strengthen your policies and train your managers to handle probation fairly to avoid unnecessary legal risks.

If you are still unsure whether you can dismiss an employee during probation, or you need assistance updating your employee records to ensure compliance with all the new changes outlined in the Employment Rights Act 2025, then please get in touch with us. We are here to help.