Reframing probationary periods in light of the Employment Rights Act 2025 ('ERA 2025')

Probationary periods have long been used as a way of testing whether a new hire is right for a role and the wider organisation. They will shortly play a more critical role, as employees acquire the right to claim unfair dismissal after six months' service on 1 January 2027. This compressed timeframe means that employers will need to be more deliberate about how probationary periods are structured, monitored and concluded, as we explore in more detail below.

Getting off to the right start

Employers should give greater thought to when a new joiner starts work, beyond simply when they are able to commence their role. Beginning employment during a peak period, when managers are unable to provide training or supervision, may prevent a full and fair assessment during the first few months. Equally, starting during a particularly quiet period may leave little opportunity for the employee to demonstrate whether they can perform the role effectively.  

Manager availability is also a key practical consideration. Where a line manager is due to be absent for a prolonged period during the employee's early months, employers may wish to delay the start date or ensure appropriate supervisory cover so that probation assessments are not disrupted. 

Holiday arrangements can pose similar difficulties. In addition to asking about pre-booked leave before confirming a start date, some employers may consider limiting the amount of annual leave a new joiner can take during probation. 

The expansion of day-one rights under the ERA 2025 means that probationary periods are more likely to overlap with statutory leave, including parental and paternity leave. While some types of leave can be deferred for business reasons, others cannot.  

Sickness absence presents a more complex issue, as it cannot be anticipated in the same way. Employers may nonetheless wish to review whether enhanced company sick pay (if currently offered) should apply during probation. 

Designing probation to work in practice

Many employers currently operate six-month probationary periods. In light of the reduction in the qualifying period for unfair dismissal, shorter probationary periods of three or four months may be preferable for many roles, with an ability for the employer to extend the probationary period at its discretion. This gives employers flexibility where there is doubt, without running up against the end of the qualifying period for an unfair dismissal claim. 

Whatever the length of probation, the starting point should be clarity about what is being assessed during this time. That means having a clear role description, an understanding of core responsibilities, and a shared view of what adequate performance looks like in the early months.  

Active management during probation is essential. Regular check-ins should be the norm, with frequency tailored to the role but rarely less than monthly.  Any performance concerns should be raised as soon as they emerge, rather than being saved for formal probation review meetings. This helps ensure that employees do not reach a review meeting unaware that there are issues. Early, honest feedback gives individuals the opportunity to improve and reduces the risk of disputes arising later. Employers may also wish to consider whether input from colleagues beyond the new joiner's line manager would provide a more accurate and comprehensive picture of performance. Feedback should be documented where possible, along with any support offered, particularly where reasonable adjustments are being considered or implemented. 

Reaching a decision

If performance concerns do persist towards the end of probation, employers may wish to approach later probation review meetings more formally than they would otherwise have done. This could include a written invitation, a clear summary of the issues, and a proper opportunity for the employee to respond. Whilst a routine probation review meeting does not generally attract the statutory right to be accompanied, this may be the case where the meeting could result in a formal warning or some other disciplinary action, including dismissal. Taking a more structured and procedurally fair approach at this stage can preserve options, including confirming employment while moving into a formal performance management process following the six-month mark. 

Approached in this way, probation is less about a single pass or fail moment, and more about informed judgement. If you would like to discuss how these issues apply in your organisation, please speak to a member of the employment team. 

This article was authored by Abi Harindra, associate in the UK employment team.