When recruiting a new employee, many employers include a probation period within the employment contract. Probationary periods allow businesses to assess whether a new recruit has the skills, capability and conduct required for the role before confirming their employment.
A common misconception is that employees can be dismissed at any time during their probation period without following any process or considering their legal rights. While probationary employees generally have fewer protections than those with longer service, employers are still required to comply with employment law.
Understanding your obligations can help avoid unnecessary disputes and reduce the risk of legal claims.
What Is a Probation Period?
A probation period is an agreed period at the start of employment during which an employer assesses a new employee’s suitability for the role. Most probation periods last between three and six months, although this can vary depending on the nature of the role and the employer’s policies.
It is important to note that there is no statutory concept of a probation period under employment law in England and Wales. Instead, probation periods are contractual arrangements agreed between the employer and employee.
The employment contract should clearly state:
- The length of the probation period.
- Whether it can be extended.
- Any different notice provisions during probation.
- The standards the employee is expected to achieve.
Regular meetings throughout the probation period are considered good practice. Providing constructive feedback and addressing any concerns early gives employees a fair opportunity to improve before decisions about their employment are made.
Can You Dismiss an Employee During Probation?
In many cases, yes. However, employers should not assume that a probationary employee has no legal rights.
Employees usually require two years’ continuous service to claim ordinary unfair dismissal. This means that dismissing an employee during their probation period is generally less legally risky than dismissing someone with longer service.
However, there are important exceptions.
Employees are protected from discrimination from the first day of employment under the Equality Act 2010. An employer must not dismiss someone because of a protected characteristic such as age, disability, race, religion or belief, sex, pregnancy or maternity, sexual orientation or any other protected characteristic.
Similarly, certain dismissals are considered automatically unfair, regardless of the employee’s length of service. Examples include dismissal for:
- Raising health and safety concerns.
- Whistleblowing.
- Asserting certain statutory employment rights.
- Reasons connected with pregnancy or family leave.
Employers should therefore ensure that any decision to dismiss is based on genuine performance, capability or conduct concerns and is supported by evidence.
Even where an employee has limited employment rights, following a fair and reasonable process demonstrates good practice and can significantly reduce the likelihood of disputes.
If you are unsure about your obligations as an employer, NakdLaw provides lawyer-informed answers to common employment law questions, with every response checked and moderated by practising lawyers.
Best Practice for Employers
A well-managed probation process benefits both employers and employees.
Managers should schedule regular review meetings to discuss progress, provide feedback and identify any training or support that may help the employee succeed.
If concerns arise, they should be raised promptly rather than waiting until the final day of the probation period. Clear communication allows employees to understand what improvements are expected and demonstrates that the employer has acted reasonably.
Where performance has improved but additional time is needed, employers may choose to extend the probation period if the employment contract allows for this. Any extension should be confirmed in writing, explaining the reasons for the extension, the new review date and the standards expected during the extended period.
If the decision is made to terminate employment, employers should comply with the notice provisions contained within the employment contract and confirm the decision in writing. The dismissal letter should explain the reason for the decision and any contractual entitlements, such as notice pay or outstanding holiday pay.
Following a structured process not only reduces legal risk but also helps maintain the employer’s reputation as a fair and responsible organisation.
Conclusion
Although probationary employees generally have fewer employment protections than employees with longer service, employers cannot simply dismiss them without considering the law.
Performance concerns should be managed fairly, decisions should be based on legitimate business reasons and employers must remain mindful of discrimination and automatically unfair dismissal protections, which apply from the first day of employment.
By following a clear probation process, documenting performance discussions and communicating openly with employees, businesses can make informed decisions while minimising the risk of legal disputes.
Need Employment Law Advice?
Whether you’re recruiting new staff, managing probation periods or dealing with workplace performance issues, Penerley’s experienced employment solicitors are here to help. We provide practical, commercially focused advice to employers across England and Wales. Contact Penerley today to discuss your employment law matter.
