A probationary period serves as a trial phase at the commencement of an employee’s contract, allowing both the employer and the employee to determine whether the employee is suited to the role and working environment.
Employees on probation enjoy fewer protections than permanent staff, granting an employer more freedom to terminate employment during this phase. Nonetheless, these employees still retain significant employment rights, so you should continue to tread carefully if it becomes necessary to dismiss an employee on probation.
In this article, the second of our two-part guide on probation periods, we look at how to manage performance or conduct issues that may surface during the probation period, as well as the procedures for dismissing someone on probation. Additionally, we discuss the Government’s proposals for a statutory probation period, anticipated to come into force in 2026. You can access the first part of this two-part guide, which details how probationary periods work and outlines employee rights during this period, here.
Addressing Performance and Conduct Concerns During Probation
It is not unusual for performance or conduct-related concerns to emerge during probation. A new employee may fail to meet the expected standards, or there may be instances of misconduct or inappropriate behaviour.
The primary purpose of a probationary period is to identify such issues before offering the employee a fixed term or permanent contract, which would grant them enhanced contractual rights within the workplace and, over time, additional statutory rights.
The approach to addressing any issues during this probationary period will vary based on the severity and nature of the issue. In many instances, minor performance or conduct problems can be managed through an informal discussion or a verbal warning. However, for more serious matters, you may consider extending the probation period or initiating formal proceedings with the possibility of dismissal.
Documenting Performance or Conduct Issues
Before moving forward with disciplinary proceedings, it is essential to compile documented evidence of any instances of poor performance or related concerns. This practice helps you justify your decision and safeguards your business from potential legal issues.
Maintaining consistent record-keeping during the probation period is crucial to demonstrating to the employee that they have been afforded a fair opportunity to succeed in the role. It also reflects your effort to address their shortcomings through constructive feedback and support.
Disciplinary Action During the Probation Period
When implementing disciplinary measures against any employee, including those on probation, employers should conduct the process fairly. Necessary investigations should be carried out to establish the facts, and this should be done without unreasonable delay.
The employee should be informed of the specific issues at hand, and a meeting should be scheduled to allow them to present their perspective.
After the meeting, you will need to decide whether any disciplinary action is necessary and notify the employee of your decision in writing. In cases where the issue is relatively minor and allowances can be made for the employee’s inexperience or lack of knowledge, a verbal or first written warning may be appropriate.
However, if the situation is more serious, especially considering that the employee is still on probation, you may opt to issue a final warning or contemplate dismissal.
Dismissing an Employee on Probation
Even when it becomes clear that an employee is not meeting expectations, many employers prefer to wait until the end of the probation period to allow the employee an opportunity to improve.
Nevertheless, there are instances where employees are removed in the middle of their probation, usually when there is a glaring conflict between them and the company. It is, however, still good practice to first attempt to resolve the issues by explicitly setting out performance expectations and conducting regular reviews to assess progress.
Minimum Notice Periods
If, despite your best efforts, the situation does not improve, you would be within your rights to dismiss the employee. It is important to remember that even during a probation period, the employee will still be entitled to a minimum statutory notice period.
The legal minimum notice for an employee who has been continuously employed by you for between one month and up to two years is a week. Therefore, you should either provide the appropriate notice period or offer payment instead of notice, along with any accrued but unused holiday entitlement. If the employment contract sets out a longer notice period, you must comply with that contractual entitlement. For employees who have been employed with you for less than a month, there is no legal requirement to give notice, but it is still considered best practice to do so.
Failing to provide the required notice could lead to claims of wrongful dismissal, which occurs when the employer violates the terms outlined in the employee’s employment contract.
In cases of gross misconduct, such as physical violence, drug or alcohol abuse, theft or fraud, it may be permissible to dismiss an employee immediately for a first offense, without providing notice or pay in lieu of notice. Nevertheless, it is still prudent to conduct a thorough investigation and carry out a fair disciplinary process, even when addressing allegations of gross misconduct involving an employee on probation.
Dismissal Procedure
Before you make a final decision, it is important to engage in a review meeting with the employee to discuss your concerns. This meeting allows the employee the opportunity to explain their side. If you decide to proceed with the dismissal, ensure this decision has been set out in writing and maintain written records throughout the process so you can demonstrate that a fair process has been followed.
Additionally, you should review the employee’s contract of employment; if it outlines a specific dismissal procedure, then you are obliged to adhere to it. Neglecting to follow the stipulated procedure may expose you to potential claims of wrongful dismissal or breach of contract.
Even in the absence of a specified dismissal procedure, it is still important to act in a way that is fair and reasonable. The primary objective is to ensure that all employees are treated in the same way and that a consistent approach to dismissal is maintained. This practice will help mitigate the risk of potential claims being brought against you in a tribunal setting.
It is advisable to meet with the employee to discuss the dismissal and to provide them with a written copy of your decision within a few days. Additionally, clearly explain your reasons for the dismissal and inform them about their right to appeal. The appeal stage can be kept simple, but it’s an opportunity for the employee to voice any objections, which you should consider thoroughly.
Unfair Dismissal and The Probation Period
Legally, employees must have a minimum of two years of continuous service with an employer to file an unfair dismissal claim. Nevertheless, it is important to remember that even during a probationary period, an employee will still have certain fundamental statutory rights. These include protection against unlawful discrimination or dismissal based on race, sex, religion, age or any other protected characteristics set out in the Employment Rights Act 1996.
Additionally, employees cannot be dismissed for reasons deemed as ‘automatically unfair.’ This includes being dismissed for taking leave for family reasons, including pregnancy and maternity, or taking leave for family emergencies or to care for dependents.
Preparing For Day 1 Rights and Probation Periods
One of the significant changes proposed in the Employment Rights Bill 2026 is to give employees the right to claim unfair dismissal from their very first day of employment. The Bill also introduces a statutory probation period, with the government favouring a duration of nine months. During this time, employers will be able to dismiss employees fairly, provided they adhere to a ‘light touch’ procedure.
These changes are anticipated to come into effect in Autumn 2026, allowing employers ample time to prepare and adapt. We will continue to provide updates as more details become available.
As the new statutory provisions come into effect, it will be increasingly important to have effective probation processes in place to assess new employees. It therefore makes sense for employers to proactively establish good habits now by communicating expectations to new hires, scheduling regular probation review meetings with them and meticulously documenting any concerns regarding conduct or performance.
How We Can Help
Probation periods present a valuable opportunity for employers to assess whether a new starter is right for a job and compatible with their team. However, it is crucial to manage these periods effectively and exercise caution when addressing any performance or conduct issues that may arise. It is particularly important to adhere to legal obligations and respect the rights of employees, particularly in cases where there may be allegations of discrimination.
Our experienced employment law team is on hand to provide ongoing advice on any matters relating to the discipline or dismissal of employees on probation. If you would like further guidance or support updating your probation policies in light of the upcoming changes in the law, please get in touch on 0300 303 2071 or email us.
