Managing a Probationary Period: How to Use It Properly and End It Safely

It is Friday afternoon. You have decided that the new hire is not working out, and you want to let them go before the probationary period ends. They have only been with you for ten weeks. You assume this is simple. They are on probation, after all. Then the letter arrives from a solicitor.

This happens more often than most business owners expect. Probation does not give you a free pass to dismiss without consequence. Some of the most significant employment protections apply from the very first day of employment, regardless of whether you have a probationary period written into the contract. Dismissing someone carelessly during probation can expose you to a discrimination claim, a wrongful dismissal claim, or worse, with no qualifying period standing between you and the tribunal.

This post explains clearly what a probationary period can and cannot do, what process you still need to follow, and how to extend it correctly when performance is not where it needs to be.

What Is a Probationary Period and What Does It Actually Do?

A probationary period is a trial phase at the start of employment. It gives you time to assess whether the person is the right fit for the role, whether they are performing to the required standard, and whether they are settling into the team and the culture.

Probationary periods are not a legal requirement in the UK. They are a contractual arrangement, which means they only exist and carry any weight if you have written them properly into a bespoke employment contract. A template downloaded from the internet is unlikely to cover probation clearly, and any ambiguity in a contract will be read in the employee's favour, not yours.

What probation does not do is remove an employee's fundamental employment rights. It does not allow you to dismiss someone without any reason at all. And critically, it does not protect you from a discrimination or whistleblowing claim if those are the real or perceived reasons behind a dismissal.

The Current Legal Position and What Is Changing

Under current UK employment law, employees need two years of continuous service before they can bring a standard unfair dismissal claim. This means that if you carry out a probationary period dismissal before that threshold is reached, the employee cannot claim ordinary unfair dismissal.

That sounds reassuring. But it does not mean process is optional. The risk of an automatic unfair dismissal claim remains from day one, and a discrimination claim has no qualifying period whatsoever. A dismissed employee who believes they were let go because of their pregnancy, disability, race, or any other protected characteristic can go straight to a tribunal, regardless of how long they worked for you.

It is also important to know that this landscape is about to change significantly. The Employment Rights Bill 2024, currently working through Parliament, is expected to introduce day one unfair dismissal rights by 2027. A new statutory period of around nine months is proposed to replace the traditional probation concept, with a lighter-touch dismissal process applying during that time, but process will still be required. You can read more about the proposed changes on the UK Government's Employment Rights Bill page. The direction of travel is clear: the flexibility employers currently have is narrowing. Now is the time to get your probation procedures right.

What Process Do You Still Need to Follow?

Even where you have every legitimate reason to carry out a probationary period dismissal, you still need to follow a fair and reasonable process. Skipping steps here is where employers get into trouble.

Regular Reviews With Documented Feedback

Good probation management means holding structured review meetings, ideally at the one month, two month, and end of probation stages. These meetings must be documented. You need to be honest about where performance is falling short and give the employee a genuine opportunity to address the concerns raised.

If you give nothing but positive feedback throughout probation and then dismiss someone at the end, you have almost nothing to stand on if they challenge the decision. A tribunal will look for evidence that the employee knew about the concerns and was given a fair chance to improve.

Give the Employee a Chance to Respond

Before making a final decision, give the employee an opportunity to respond to the concerns. This does not always need to be a formal disciplinary hearing, but there must be a meeting, a clear explanation of the problem, and a written record of what was discussed and decided.

If the issues relate to conduct rather than capability, you may need a more structured disciplinary process. Do not assume that being on probation bypasses the need for this. The two situations call for different approaches and it matters which one you follow.

Give the Correct Notice

You must give the notice period set out in the contract, or statutory minimum notice if that is longer. Statutory minimum notice for someone with less than one month of service is technically nil, but most well-drafted contracts specify at least one week. Failing to give the correct notice can result in a wrongful dismissal claim even where the employee has no unfair dismissal rights.

Follow the Process Your Contract Sets Out

If your contract or company policies and procedures specify a particular probation process, you are bound by it. If you have stated that an employee will receive a written warning before dismissal, and you dismiss without one, you may be in breach of contract. This is another reason why bespoke, properly drafted documents matter far more than templates.

The Probationary Period Dismissal Checklist

Before you dismiss anyone during their probationary period, work through every point on this list.

How to Extend a Probationary Period Correctly

Sometimes the decision is not straightforward. The person is not performing as well as you need, but you are not yet ready to dismiss. Extending the probationary period can be the right move, but only when it is handled properly.

Check That Your Contract Allows It

Not all contracts include an extension clause, and if yours does not, you cannot simply extend probation unilaterally. This is one of the most common gaps in template contracts. A bespoke employment contract should always include a clearly drafted extension clause with the conditions under which it can be used.

Be Specific About the Reason for Extending

If you are extending probation, you must tell the employee exactly why. Vague feedback is not enough. Identify the specific areas that are not meeting the required standard, describe what good looks like, and set a clear timescale for review.

Extending without a clear reason, or extending repeatedly without a genuine improvement plan behind it, can be challenged. It can also create the appearance that you are stringing someone along rather than managing them fairly and honestly.

Confirm the Extension in Writing

Put the extension in writing, including the new end date, the concerns that have led to it, what the employee needs to achieve, and what happens at the next review. This becomes part of the employment record and will matter significantly if things do not improve.

Build in a Midpoint Review

Do not wait until the very end of an extension to assess progress. If you extend for two months, schedule a review at the one month mark. This gives the employee a chance to course correct, and gives you a documented record of whether improvement has or has not taken place.

If performance does not improve after an extension, you may be moving into capability territory. Our post on capability vs disciplinary procedures explains the differences clearly, because following the wrong process at that stage creates its own risks.

Absence During the Probationary Period

Absence is one of the areas where probation dismissals most commonly go wrong. If an employee is off sick during their probationary period, you cannot dismiss them simply because of the absence, particularly if it relates to a disability or pregnancy. Long-term sickness requires its own careful process even during probation, and rushing to dismiss in these circumstances significantly increases tribunal risk.

Short-term absence should be documented and addressed at review meetings. If attendance is a concern, raise it early, record it, and give the employee the chance to respond. Do not leave it until the final review and use it as a reason to dismiss without any prior discussion.

The Risk Most Employers Overlook

Most business owners think about unfair dismissal when they consider the risks around probationary period dismissal. The risk they often miss is discrimination.

A dismissed employee who believes the real reason was their pregnancy, their race, their disability, or another protected characteristic can bring a claim to an employment tribunal with no qualifying period. There is no two-year wait. The claim can land on your desk within weeks of the dismissal, and the financial and reputational consequences can be severe.

This is why having the right policies and procedures in place, and following a clear and documented process every time, protects your business even when you are entirely within your legal rights to dismiss. Documentation is not bureaucracy. It is your evidence.

It is also why a properly tailored employee handbook matters. It sets out expectations clearly from the outset, creates a consistent framework for managing people, and gives you a defensible position if a decision is ever challenged.

Not Sure Whether You Are Doing This Correctly? Talk to Us First.

A probationary period dismissal handled badly is significantly more expensive to fix than it is to get right first time. If you are at the point of making this decision and you have any doubt about your process, the most valuable thing you can do right now is pick up the phone before you act.

At J Mann Associates, we work with small and medium business owners across Wiltshire and beyond, helping them manage their people safely and confidently. We have guided hundreds of employers through exactly this situation. If you need to talk it through, get in touch here or book a free consultation call and we will tell you exactly where you stand.

If you are at the stage where a formal process is also needed alongside the probation decision, these posts will help:

Disciplinary Hearing: What Must You Do When Conducting a Disciplinary

Phased Return to Work: What You Need to Know