Probation periods are changing: 10 things employers should do now

Effective use of probationary periods has always been important, but until now, if employers got the decision wrong, there was generally up to two years to determine an employee’s suitability for a role before the employee acquired unfair dismissal rights.

From 1 January 2027, however, that position will change significantly, with unfair dismissal protection available after six months’ service (and the current compensation cap for unfair dismissal claims removed). It is therefore going to be imperative that probation periods are well managed, to enable early decisions to be made about capability. We set out our ten key recommendations below.

1. Decide on an appropriate length for probation

Traditionally, many probation periods have been 6 months. Most employers are now looking at adopting shorter probationary periods, for instance three or four months. This allows time for an extension of up to one month, where appropriate, and for brief delays such as for sickness absence, while still enabling dismissal to take place if necessary, before the employee acquires unfair dismissal rights.

Where absence arises due to sickness, disability, family leave or another reason, employers should balance the different risks when considering whether to extend a probationary period. While it is important not to treat a lack of evidence caused by authorised absence as equating to poor performance, employers will also need to keep a close eye on the point at which unfair dismissal protection may arise. Extending probation can give employees a fair opportunity to demonstrate their suitability – and reasonable adjustments will obviously need to be considered in disability cases – but any extension should be actively managed and reviewed to ensure key decisions are not delayed unnecessarily.

2. Ensure you have a suitable recruitment and induction process

Now is the time for employers to review their recruitment processes to ensure they are hiring the right people in the first place. A meaningful induction process serves to ensure that new joiners know the standards expected of them and are aware of the employer’s key policies, procedures, and rules. If the employee has not completed a meaningful induction process, they may well assert that they did not understand, or could not meet, the standards expected of them. Records should also be kept of the employee’s attendance at training courses.

3. Review the employment contract

Employers should be reviewing their employment contracts to check that the description of arrangements for probation is accurate. Legally, all employees and workers must receive a written statement of particulars setting out the length of any probationary period and any applicable conditions, on or before their first day of work. It is a good idea for the contract of employment to make it expressly clear in writing that probation continues until the employee is confirmed in post. (Whilst this will not help with unfair dismissal claims if employment goes beyond 6 months, it is relevant to contractual entitlements that may apply after the end of probation, such as longer notice periods.)

4. Document and share feedback

Feedback about the employee’s performance should be gathered, considered and shared with the employee by the employer in good time. Managers should not wait until the end of the probationary period to identify or address underperformance. The feedback and any concerns throughout the probationary period should be documented and retained on the employee’s file.

At least one formal review should ideally take place part way through the probation period. This provides an opportunity to give the employee clear feedback on whether they are meeting expectations and, where concerns have arisen, an opportunity for them to improve before a final decision is made. 

The outcome of any probation review meeting, including any objectives, improvement measures, extensions to probation and final decisions, should also be confirmed in writing. Where the decision is made to end the employment relationship, employers should ensure that there is a clear paper trail setting out the rationale.

All of the above will provide useful evidence in the event that a decision to fail probation is challenged as being discriminatory.

5. Consider your probation policy (if you have one)

Any probation policy should be updated to reflect any changes to probation timeframes and managers should be trained on the content of the policy and the importance of identifying concerns early, providing regular feedback, and maintaining appropriate records throughout the probationary period. Not following an internal policy where one is in place can in itself give rise to allegations of discrimination.

6. Follow a structured process

Employees should understand from the outset how their probationary period will be managed, including any performance objectives, training requirements, key milestones and review dates. Probation review meetings should be diarised in advance and need to take place as planned, as a priority management task. Having this kind of structure in place avoids any surprises for the employee or any drift in decision-making on the employer’s side.

7. Take a step back before reaching conclusions

Before reaching any conclusion about performance or suitability, employers should consider whether the concerns could be linked to a protected characteristic or whether any requirement, practice or assessment could place certain groups at a particular disadvantage and give rise to discrimination risks.  Proactively identifying and weighing these risks will help ensure that any potential outcomes are robust and legally defensible.

8. Reasonable adjustments

If an employee has a disability, or there are indications that a health condition may be affecting their performance, employers should consider at the earliest opportunity whether reasonable adjustments may be required.

An early referral to Occupational Health is generally an advisable step, and will help with understanding the employee’s needs and any support that may assist them in performing their role. The reasonableness – or otherwise – of any such adjustments can then be considered and documented.

9. Respond promptly to employee concerns

If an employee raises concerns during their probation period – whether about their treatment, workload, wellbeing, working environment or anything else – these should be taken seriously and addressed without delay. Concerns that are ignored or left unresolved may later be relied upon as evidence that a subsequent dismissal was connected to, or influenced by, the employee having raised those concerns, which might in some cases amount to whistleblowing. It should be borne in mind that no qualifying length of service is required where an employee is dismissed because they have blown the whistle on wrongdoing in the public interest.

Prompt investigation and appropriate action will help reduce this risk by demonstrating that the organisation takes concerns seriously and has no desire to silence or punish employees who speak up.

10. Trust your instinct

Probationary periods are designed to assess whether an employee is the right fit for the role and the organisation. If, despite appropriate support, feedback and opportunities to improve, there are genuine concerns about performance, conduct or suitability, employers should avoid delaying a decision in the hope that matters will improve.

With the legislative changes coming into effect in the New Year, procrastination will significantly increase legal risk for employers. Where the evidence points to the employment relationship not working as intended, it will be better to make a timely (and well-reasoned) decision than to allow concerns to drift beyond the probationary period.

Get in touch with Lucy McLynn or Solinda Butawo if you have any questions about anything outlined above

The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice on which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please contact the Bates Wells team if you require further information.