Can I Dismiss Someone During Their Probation Period?
Yes, but probation does not mean no rights. Employees have significant protections from day one, and from January 2027 the window to dismiss before unfair dismissal protection kicks in shrinks dramatically. This guide covers what you can and cannot do during probation, how to structure the process, and what ERA 2025 means for every probation period in your business right now.
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North West BasedYou can dismiss an employee during their probation period, but probation is not a legal category that removes employment rights. Employees have significant protections from day one including protection from discrimination, whistleblowing dismissal, and automatically unfair dismissal. From January 2027, ordinary unfair dismissal protection arrives after just six months, meaning many employees will gain full protection while still within a standard six-month probation period. The entire approach to probation management in North West businesses needs to change now.
Probation Does Not Mean No Rights
This is the most important thing to understand about probation dismissal, and the most widespread misconception among North West employers.
Many business owners believe that a probation period is a legal category that gives them a free hand to dismiss. They believe that during probation an employee has no rights, no notice entitlement, and no recourse if things do not work out. All three of these beliefs are wrong.
A probation period is a contractual arrangement: a period agreed between employer and employee for the purpose of assessing suitability. It is not defined in statute and it does not create a special legal status. The rights an employee has during probation are determined by the general law of employment, not by the existence of a probation clause.
Day-one rights
From the very first day of employment, every employee has the right to the National Minimum Wage, itemised payslips, statutory annual leave, rest breaks, and protection from discrimination under the Equality Act 2010. These rights exist whether the employee is in probation or not.
Statutory notice entitlement
After one month the employee is entitled to at least one week’s statutory notice before dismissal. Many employers run probation periods with no notice clause or a clause stating “no notice during probation”. These clauses are frequently unenforceable in the face of the statutory minimum.
Automatically unfair dismissal
Dismissal for whistleblowing, pregnancy, trade union activity, health and safety activity, or asserting a statutory right is automatically unfair from day one of employment. There is no qualifying service period. A probation dismissal for any of these reasons carries the same legal risk as dismissing a ten-year employee.
Ordinary unfair dismissal (current)
Currently an employee needs two years’ continuous service to bring an ordinary unfair dismissal claim. This is the one right that probation periods were historically designed to sit within.
Ordinary unfair dismissal (from January 2027)
From January 2027, ordinary unfair dismissal protection begins after just six months’ service. This changes everything about how probation should be structured and managed.
What the Law Actually Allows During Probation
Within the constraints described above, an employer has significant practical flexibility during a probation period, more than at any other point in the employment relationship.
Dismiss for conduct or capability without the full staged warning process
Provided the conduct or capability concern is genuine, documented, and the employee was given an opportunity to know what was expected and to improve. A probation period is not a licence to dismiss without any process. It is a period during which the threshold for capability action is lower and the process can be shorter.
Dismiss at the end of the probation period if the standard has not been met
Again provided the reasons are genuine, documented, and the employee has been informed during the period that their performance or conduct was a concern.
Extend probation where a proper assessment was not possible
Where there have been absences or other factors that prevented a proper assessment, provided the contract allows for extension and the extension is agreed before the original period ends. Note however: extension does not pause the clock on employment rights. An employee on an extended probation who reaches six months’ service from January 2027 will have full unfair dismissal protection regardless of where they are in the probation process.
Set a shorter notice period during probation
Provided it meets the statutory minimum of one week after one month’s service. Many contracts provide for one week’s notice during probation even where the post-probation notice is longer.
Running a Probation Period That Protects Your Business
The businesses that get into trouble with probation dismissals are almost always the ones that treat probation as informal, with no structured reviews, no documented feedback, no clear expectations communicated at the start.
Set Clear Expectations From Day One
At the start of employment, communicate clearly what the employee is expected to achieve during probation: performance standards, behavioural expectations, any specific targets or milestones. Put this in writing. The employee needs to know what they are being assessed against. You need a written record that they knew.
Conduct Regular Documented Reviews
Do not leave the first review until week eleven of a twelve-week probation. Conduct structured check-ins, at least monthly, with a written record of what was discussed, what feedback was given, what improvements were agreed, and the employee’s response. These records are the evidence base for any dismissal decision.
Raise Concerns Early
If performance or conduct is not meeting the required standard, say so, in writing, clearly, with enough time for the employee to improve before the end of the probation period. A probation dismissal that comes without any prior indication of concern is hard to defend even in the current framework. From January 2027, with unfair dismissal protection at six months, it becomes virtually indefensible.
Follow a Fair Process for Dismissal
Even during probation, dismissal should follow a basic fair process: written notice of the concerns, an opportunity for the employee to respond before the decision is made final, and written confirmation of the outcome. This does not need to be as extensive as a full disciplinary process but it does need to exist. A probation dismissal with no process at all is the most common way a straightforward situation becomes a discrimination or whistleblowing claim.
Give Proper Notice
Pay the correct notice, the higher of the statutory minimum and the contractual notice period for the probation phase. Withholding notice from a probationary employee is a wrongful dismissal claim regardless of how long they have been employed.
Confirm in Writing
Confirm the dismissal in writing, including the reason, the notice period, the final date of employment, any payments due, and the procedure for any appeal. Even during probation, a clearly documented termination reduces the risk of ambiguity or dispute.
ERA 2025 Changes Everything About Probation
This is the most important section on this page for any North West employer running standard six-month probation periods, and it requires action now, before January 2027.
What is changing?
From 1 January 2027, the qualifying period for ordinary unfair dismissal reduces from two years to six months. Any employee who has six months’ continuous service on 1 January 2027 gains full unfair dismissal protection on that date, including employees currently within a probation period.
Who this affects immediately
Anyone hired on or before 30 June 2026 will have six months’ service by 1 January 2027 and will gain protection on that date. Anyone hired after 30 June 2026 will gain protection when they personally reach six months’ service.
What this means for standard six-month probation periods
If your probation period runs for six months and unfair dismissal protection begins at six months, the two overlap almost entirely. An employee who passes their probation on day 180 has had unfair dismissal protection since day 182. The window in which you can dismiss with minimal procedural risk has effectively disappeared.
What best practice looks like from now
Leading employment law firms recommend shortening probation periods to three or four months, with a one-month extension option where genuinely needed. This creates a window of at least one to two months in which the employer can make a clear, documented decision about the employee’s suitability before unfair dismissal protection applies.
What you need to review now
Your standard employment contracts: do they specify probation period length and the notice period during probation?
Your probation review process: is it structured, documented, and early enough to allow a decision before six months?
Your managers’ understanding of how probation should be managed and what documentation is required
Your approach to probation extensions: do they take the employee past the six-month threshold without adding any real assessment value?
DaisyHR helps North West businesses review and update their probation frameworks ahead of January 2027.
ERA 2025: Probation Period Action Required Before July 2026
Any employee hired from this date onwards will gain unfair dismissal protection on reaching six months’ service. Your probation period must be structured to allow a clear suitability decision before that threshold.
Unfair dismissal protection begins at six months for all employees. Anyone already employed with six months’ service on this date gains protection immediately.
Compensation cap removed. From January 2027 there is no upper limit on unfair dismissal compensation. A mishandled probation dismissal of a senior employee carries unlimited financial exposure.
What to do now: Review probation period lengths in all employment contracts. Shorten standard probation to 3–4 months with a documented extension option. Implement structured review processes with written records at every stage. Train managers on probation management before July 2026.
Read our full ERA 2025 guide for North West employersFrequently Asked Questions
Not safely. While you do not need the same documented justification as for a long-service employee, you should always have a genuine reason for a probation dismissal and be able to articulate it. More importantly, where the real reason for dismissal is a protected characteristic or protected activity, the absence of a documented alternative reason makes the discrimination or automatic unfair dismissal claim significantly easier to establish.
Yes. After one month’s employment the employee is entitled to at least one week’s statutory notice regardless of what the probation contract says about notice. Contractual notice during probation cannot be less than the statutory minimum. Withholding notice from a probationary employee is wrongful dismissal.
Yes, provided the contract allows for extension and the extension is agreed before the original period ends. However, be careful about extensions that take the employee past six months’ service. From January 2027, they will have full unfair dismissal protection at that point regardless of probation status. Use extensions to gather evidence for a decision, not to delay the decision indefinitely.
Sickness during probation complicates the assessment. You cannot dismiss someone simply for being ill during probation. That risks both an unfair dismissal claim and a disability discrimination claim if the condition amounts to a disability. Extend the probation period appropriately to allow a proper assessment of the employee’s capability when fit. Do not dismiss for absence without obtaining medical evidence and following a proper process.
One week after one month’s employment. This is the statutory minimum and cannot be reduced by contract. Most employment contracts specify one week’s notice during probation. This is the minimum, but you may contractually agree longer. Whatever the contractual period, it cannot fall below the statutory minimum.
Yes, the same gross misconduct rules apply. Investigate properly, hold a hearing, give the employee an opportunity to respond, and offer a right of appeal. The fact the employee is in probation does not remove the need for a fair process in gross misconduct cases.
There is no statutory right to appeal a dismissal during probation in the same way as a formal disciplinary dismissal. However, providing a right of appeal is strongly recommended as good practice, as it demonstrates procedural fairness and significantly reduces the risk of a tribunal finding the dismissal procedurally unfair, particularly for any automatically unfair dismissal claim which carries no service requirement.
Best practice from January 2027 onwards is a probation period of three to four months maximum, with a documented one-month extension option where genuinely needed. This creates a clear window before the six-month unfair dismissal threshold during which structured assessment, feedback, and any dismissal decision can take place. DaisyHR can review your employment contracts and probation processes to ensure they are ERA 2025 ready.
Get Dismissal Advice From a North West HR Consultant
Dismissal is the area where North West SMEs face the most tribunal risk, and where getting advice early makes the biggest difference to the outcome. Book a free 30-minute consultation. We will assess the situation, tell you what the risk looks like and advise on the right course of action before you make any final decision.
Dismissal advice for employers across Bolton, Manchester, Wigan, Warrington, Salford, Stockport, Bury, Rochdale, Preston, Lancaster, Cheshire and the wider North West. · Last reviewed: March 2026