Your Probation Period Won't Protect You: Why Employers Need to Prepare for January 2027

There is a persistent misconception among employers that an employee on probation is somehow less of an employee. It is an attractive assumption, particularly when a new recruit is not meeting expectations, but it is wrong. A probationary period is a contractual or managerial arrangement used to assess suitability, not an exemption from employment law. The statutory position of an employee at three months' service is not transformed merely because their probation ends the following day. There may be differences in contractual notice, benefits or review arrangements, but protection against discrimination, the right to paid holiday and other rights applying from the outset are not suspended until a manager confirms that probation has been passed.

I have encountered an employer who extended an employee's probation on the mistaken understanding that doing so would keep ordinary employment protections at bay. The underlying circumstances are not important here. The essential point is that changing the label or extending its duration does not restart an employee's service or remove rights they already possess. An employer may have legitimate reasons to extend probation, but those reasons must be considered against the contract, the procedure being followed and the actual legal protections in place.

January 2027 changes the risk calculation

Under the Employment Rights Act 2025, the qualifying period for ordinary unfair dismissal protection in Great Britain is due to reduce from two years to six months for dismissals taking effect from 1 January 2027. An employee who already has six months' service on that date can fall within the new protection; it is not confined to people hired after the change. The existing statutory cap on compensatory awards for ordinary unfair dismissal will also be removed. That does not mean every successful claimant will receive a substantial award: compensation remains assessed on the facts, including actual loss and the applicable legal principles. It does mean that employers should no longer view the previous cap as the outer limit of their potential exposure. Northern Ireland has a separate employment law framework, and these particular changes do not apply there.

The change is important, but it should not obscure the risks that already exist. Claims involving discrimination and many automatically unfair grounds for dismissal do not depend on an employee completing two years' service, and contractual notice and other obligations can arise long before then. The idea that an employer is legally safe if it dismisses someone during probation has never been a sound management strategy. Equally, six months' service will not make dismissal impossible in 2027. Employers can still dismiss for legitimate reasons, including capability concerns, provided there is an appropriate basis and a fair process.

The problem is often what management failed to do

A recurring difficulty is that concerns are allowed to drift. A manager notices lateness, poor quality work or an inability to follow instructions, but says very little because the employee is 'still settling in'. By the time probation is due to end, the employer describes the problem as serious or longstanding, while the employee can fairly ask why nobody addressed it before. Silence does not automatically create a binding custom and practice, but repeated tolerance can weaken the employer's evidence that a standard was clear, important and consistently applied. In practical terms, an issue that could have been corrected in week three has become a contested dismissal in month six.

For most new starters, I favour structured reviews throughout the first three to six months, tailored to the role rather than performed merely to satisfy a calendar. Expectations should be made clear from the outset, problems raised as they emerge and progress recorded in ordinary, intelligible language. Where improvement is needed, the employee should understand what must change, how it will be assessed, what support or training is available and when the position will be reviewed. Reasonable adjustments and the context of any health-related or protected absence must be considered where relevant. An improvement plan is not a punishment; properly used, it gives both sides a fair opportunity to address the difficulty while the evidence is fresh.

Employers should use the remaining months of 2026 to examine probation clauses, review timetables, notice provisions and the managers who actually conduct reviews. A six-month probation period should not be treated as a six-month waiting period before anybody makes a decision. Nor should the change encourage hasty or pre-emptive dismissals without examining the risks. The most useful preparation is a management culture in which expectations are communicated, concerns are addressed promptly and decisions can be explained and evidenced. Probation should help employers manage fairly, not give them false confidence that the law does not yet apply.

Legal sources and further reading: Acas: Probation periods and legal rights · Business.gov.uk: Unfair dismissal rights from January 2027 · Employment Rights Act 2025 commencement regulations

This article provides general information on employment law in Great Britain as at 14 October 2026 and is not advice on individual circumstances.

Practical support. Real solutions.