A probation period gives employers the opportunity to assess whether a new employee is suitable for a role. It also allows employees to decide whether the position is right for them. However, many employers across England and Wales wrongly assume that they can dismiss an employee during probation without following any legal process.
While it is generally easier to dismiss someone during their probation period, employers must still comply with employment law obligations. Failing to do so can expose businesses to claims involving discrimination, breach of contract, whistleblowing and wrongful dismissal.
Understanding your legal obligations during probation periods is therefore essential for reducing risk and protecting your business.
What Is a Probation Period?
A probation period is usually a set period at the start of employment during which an employee’s performance, conduct and suitability are assessed. In most businesses, probation periods last between three and six months, although this can vary depending on the role and sector.
Importantly, probation periods are not specifically governed by separate legislation in England and Wales. Instead, they are contractual arrangements agreed between the employer and employee. This means the employment contract should clearly set out:
- The length of the probation period
- Any right to extend probation
- Notice provisions during probation
- Performance expectations
- Any reduced contractual benefits during probation
Even during probation, employees still benefit from various statutory protections from the first day of employment. This is where many employers make mistakes.
Can You Legally Dismiss an Employee During Probation?
In most cases, yes, an employer can dismiss an employee during probation if they are unsuitable for the role. However, the dismissal must still be lawful and procedurally fair in the circumstances.
Employees generally require two years’ continuous service to bring an ordinary unfair dismissal claim. This often means employers have more flexibility during probation periods. However, there are important exceptions.
An employee can still bring claims from day one of employment if the dismissal relates to:
- Discrimination under the Equality Act 2010
- Pregnancy or maternity
- Whistleblowing
- Health and safety concerns
- Exercising statutory rights
- Trade union activities
For example, dismissing an employee during probation because they disclosed a pregnancy or raised health and safety concerns could still lead to a tribunal claim regardless of their length of service.
Employers must therefore ensure that the reason for dismissal is genuine, documented and unrelated to protected characteristics or protected activities.
What Process Should Employers Follow?
Although a full disciplinary procedure may not always be necessary during probation, employers should still follow a reasonable process. A rushed or poorly handled dismissal can create unnecessary legal risk and reputational damage.
Performance Concerns
If an employee is underperforming during probation, employers should usually:
- Raise concerns informally at an early stage
- Provide reasonable support or training where appropriate
- Set clear expectations and review periods
- Hold probation review meetings
- Keep written records of concerns and discussions
A probation review meeting allows the employee to understand the issues and respond. In many cases, concerns can be resolved with proper support and communication.
Extending Probation
If performance is improving but remains below the required standard, employers may decide to extend probation. However, this should only happen if the contract gives the employer the right to do so.
The extension should be confirmed in writing and should clearly explain:
- The length of the extension
- The reasons for the extension
- The improvements required
- The consequences if standards are not met
Without an express contractual right to extend probation, employers may face difficulties imposing an extension lawfully.
Dismissing During Probation
Where dismissal becomes necessary, employers should arrange a meeting with the employee and explain the reasons for the decision. Even though statutory unfair dismissal rights may not apply, basic procedural fairness is still advisable.
The employer should then confirm the dismissal in writing, including:
- The termination date
- Notice arrangements
- Outstanding holiday entitlement
- Any right of appeal if applicable
Employees are usually entitled to at least statutory minimum notice once they have worked for one month. This is generally one week’s notice unless the contract provides for a longer period.
Failure to provide proper notice could result in a wrongful dismissal or breach of contract claim.
Common Mistakes Employers Make During Probation
Many businesses underestimate the legal risks associated with probation dismissals. Common mistakes include failing to document concerns, dismissing employees without any meetings or ignoring discrimination risks.
Another frequent issue is assuming that probation periods automatically extend. Unless the contract allows for an extension, continuing employment after the probation end date may result in the employee being treated as having passed probation by default.
Employers should also avoid relying solely on informal conversations. Written records are extremely important if a dismissal decision is later challenged.
Remote and hybrid working arrangements have also created new challenges. Employers should ensure probation reviews are properly managed even where employees work remotely. Regular communication, clear targets and documented feedback remain essential.
How Employers Can Reduce Legal Risk
A well-drafted employment contract and structured probation process can significantly reduce disputes. Employers should ensure contracts clearly define probation terms and notice provisions from the outset.
Managers should also receive training on handling probation reviews fairly and consistently. Poorly managed dismissals can affect staff morale, increase tribunal risk and damage a company’s reputation.
Key steps employers should take include:
- Using clear probation clauses in contracts
- Holding regular probation review meetings
- Keeping written records of concerns
- Following a fair and consistent process
- Seeking legal advice before high-risk dismissals
At Penerley Solicitors, we advise businesses across England and Wales on probation periods, employment contracts, dismissals and workplace disputes. Our employment law team can help employers manage staff issues lawfully while minimising legal and commercial risk.
If you are considering dismissing an employee during probation or need advice on your employment contracts and procedures, contact Penerley Solicitors today for tailored employment law advice.
