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Why probation still matters – even with day one rights delayed
Written by Richard Jay on 30 July 2025
Probationary periods remain a vital tool for employers to assess new hires, but upcoming changes to unfair dismissal rights mean managing them well is more important than ever.
The government remains committed to giving employees unfair dismissal protection much earlier in employment. Its original plan, set out in the Employment Rights Bill, was to introduce day one rights alongside a new nine-month ‘initial period’ during which employers could follow a simpler, ‘lighter-touch’ dismissal process. However, the government’s Implementation Roadmap confirmed that these changes aren’t expected to take effect until 2027.
Since then, the House of Lords has voted to remove the initial period entirely and instead reduce the qualifying period for unfair dismissal from two years to just six months. The Bill now returns to the Commons, where the government is expected to reject the amendment – but the final outcome is still up for debate.
With the proposal pushed back and the finer details still pending, it might seem that employers can afford to watch and wait. But change is coming, and whatever form it takes, one thing is for certain: employers can expect less freedom to dismiss during the early stages of employment. That makes it all the more important to manage probationary periods well now. Meaningful and well managed probations will not only reduce legal risks today – they will stand you in good stead when new rules eventually take effect.
Here’s a timely recap.
What is a probationary period?
In simple terms, the probationary period serves as a ‘trial period’ at the start of employment. The purpose of this period, which typically lasts a few months, is to give the employer and the employee the opportunity to assess whether the role and the organisation are the right fit.
Notice periods are typically shorter during this time, and in some cases, certain benefits, such as company sick pay, may not kick in until after an employee has successfully passed their probation.
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Do employees gain more rights after the probationary period?
From an employment law perspective, probationary periods are just a contractual clause. At present, employees don’t gain the right to bring an ordinarily unfair dismissal claim until they have at least two years’ continuous service – regardless of whether a probationary period has been completed.
This means that if an employee is dismissed during their probation or within their first two years of employment, they won’t be able to bring an ordinary unfair dismissal claim, reducing the legal risk to employers.
What risks do employers need to be aware of during the probationary period?
In our experience, employers who view probation simply as a trial to assess fit often face two main risks:
1. Forgetting that employees still have several day one rights – and, indeed, pre day one rights – regardless of whether or not they are in probation.
While they may not be able to bring ordinary unfair dismissal claims, short-service employees do have rights and can bring other types of claims without qualifying service, including claims for:
- Discrimination due to disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
- ‘Automatically’ unfair dismissal for reasons such as whistleblowing, voicing health and safety concerns, or exercising a statutory right.
Where an employee is dismissed in accordance with their contract before or after their probationary period, employers must consider the risk of these potential ‘day one claims’.
A common example would be where an employee has a disability that has caused issues during the probationary period, perhaps impacting their attendance. In this case, it doesn’t matter legally whether they are inside or outside the probationary period; they still have the right not to be discriminated against because of their disability. In these situations, speaking to a legal adviser can help you properly assess the risk to your organisation.
2. Treating the probationary period as the ‘be all and end all’.
While having a set deadline for reviewing progress is useful for all parties, any concerns about an employee should be addressed in real time. This will prevent you from making hasty decisions simply because the probationary period is coming to an end, which can lead to problems.
For example, extending the probationary period for a disabled employee for a reason that could be connected to their disability might be acceptable. However, you should consider what passing probation would have meant for them – such as better benefits or longer notice – and whether the extension could be seen as a detriment. These issues need to be identified and managed early to minimise risk.
Top tips for effective probationary periods
Review your contract templates
Your contracts set the rules for the probationary period, so this is the place to start. Do your clauses do what you need them to do? For example, do they allow for extensions or shorter notice periods? If you’re unsure, seek advice to ensure they’re fit for purpose.
Communicate clearly and early
Don’t let probation outcomes come as a surprise. If you’re considering extending the probationary period, make sure the employee is expecting this. Ongoing dialogue helps manage expectations and can make performance conversations more constructive. Remember, while employees don’t gain unfair dismissal rights just by passing probation, they may still be caught off guard if you terminate their employment shortly afterwards without warning.
Hold structured review meetings
Don’t wait until the end of the probationary period to check in. If your policies allow, schedule one or more review meetings during this window to discuss performance and address any concerns early. Also, be aware that probationary periods don’t necessarily automatically extend unless you actively notify the employee. This is where well-drafted clauses and timely advice can make all the difference.
Take prompt action if the probation review is missed
If you miss the review meeting at the end of the probationary period, review your contracts and seek advice. Depending on the circumstances, you may be able to argue (with an express automatic extension clause) that the period automatically extended. Remember though, terminating employment after the probationary period is still possible and, broadly speaking, the considerations will be the same.
So, why do probationary periods matter – now and in the future?
Setting aside time to assess whether an employee is the right fit is good practice for any organisation and can serve as a motivational tool. However, it’s how you use this time that has the greatest impact. If things aren’t working out, then ‘calling the relationship early’ during the probationary period can be more cost-effective for employers – but it’s crucial to assess any underlying risks.
With significant changes to employment law on the horizon – including day one unfair dismissal rights – employers should look to tighten up their recruitment processes far in advance to ensure that they have the right people in post, and revisit their use of probationary periods to ensure their organisation remains protected.
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