Yes, you can still dismiss during probation. But the rules have shifted
Advice from an HR consultant in Milton Keynes working across the UK, on dismissing employees during probation under the new 6-month unfair dismissal qualifying period.
The Employment Rights Act is bringing in a significant change to how quickly employees gain protection against unfair dismissal.
From 1 January 2027, the qualifying period drops from two years to just six months.
If you hire someone from 1 July 2026 onwards, they'll be covered by the new rules.
For you as a business owner, that changes the way you need to handle things when a new starter isn't working out.
Here's what you need to know and what to do about it.
The qualifying period is shrinking
Until now, you've had two years before an employee could claim unfair dismissal. That gave you a generous window to assess whether someone was right for the role. If they weren't, you could part ways without too much formality and with relatively low legal risk.
That window is about to get much shorter.
Under the new rules, employees will qualify for unfair dismissal protection after six months of service. There will be a statutory initial period of employment, which acts as a formal probation window. But one detail catches many business owners off guard: employees can still bring a claim during that initial period. The protection starts sooner than you might expect.
So the buffer you've relied on is disappearing. And the informal approach that may have worked before now carries real risk.
You still have the right to dismiss
I want to be clear about this because I know it's the first question on every business owner's mind. You can still let someone go during their probation period. That right hasn't been removed.
You can dismiss for performance issues. You can dismiss for conduct. You can end the employment if the person simply isn't the right fit for the role. None of that has changed.
What has changed is the bar you'll need to meet if that decision is ever questioned. The standard of fairness you're held to is higher, and you need to be able to demonstrate that you followed a proper process.
What a fair process looks like now
The days of a quiet word and a handshake are behind us. If you're going to end someone's employment within their first six months, you need evidence that you handled it properly.
Specifically, you need to show that you:
🟢 Raised your concerns early on, and put them in writing
🟢 Gave the employee clear feedback about what needed to improve
🟢 Allowed them a reasonable chance to make those improvements
🟢 Followed a fair and consistent process throughout
If you can't point to documentation showing you did these things, you're exposed. It really is as simple as that.
Don't get stuck on how long your probation period should be
I get asked this question a lot, and honestly, nobody has landed on a definitive answer yet.
There's no legally mandated probation length under the new rules. HR professionals and employment lawyers are all in different camps. Some suggest three months. Others say five or six. The reality is that no single standard has emerged.
My advice? Stop worrying about the number and focus on what happens during the probation period instead.
A six-month probation with no structure and no written records is far riskier than a three-month probation with clear expectations, regular reviews and documented feedback. The quality of your process matters far more than the length of time on the contract.
Your managers need to step up
One of the biggest sources of risk I see in businesses is managers who avoid difficult conversations. They notice a problem with a new employee but hope it will resolve on its own. They put off giving honest feedback. They let weeks slip by without addressing concerns.
Under the old two-year qualifying period, you could sometimes get away with that. Under the new rules, you can't.
Your onboarding process needs to set clear expectations from day one. Probation reviews need to happen on schedule and be properly documented. If there are performance concerns, they need to be raised quickly rather than left to drift.
You also need to make an earlier decision about whether someone is the right fit. And you need a clear trail showing how you arrived at that decision. Manager capability is absolutely central to getting this right.
The mistakes that leave you vulnerable
When a dismissal is challenged, the same problems tend to come up again and again. These are the ones I see most often through my HR consultancy services in Milton Keynes:
➡️ No written record that concerns were ever raised with the employee
➡️ No evidence that the employee received support or feedback to help them improve
➡️ The company's own dismissal procedure wasn't followed
➡️ Different employees in similar situations were treated differently
➡️ A manager waited too long, hoping the issue would sort itself out
Every single one of these is preventable. You don't need complicated systems or expensive software. You just need a consistent, documented approach that you actually follow.
Questions worth asking yourself
Before the new rules take effect, it's worth taking a step back and thinking about where your business stands. Ask yourself:
1. Do your managers know how to give written feedback during a probation period, and do they actually do it?
2. If you dismissed someone tomorrow, could you produce a paper trail showing how and when concerns were raised?
3. Are your probation reviews structured with clear expectations, or are they informal catch-ups with no record?
4. Would you handle a dismissal the same way regardless of which employee it was, or does it depend on the person?
5. Have you updated your probation and dismissal processes to reflect the new qualifying period?
If the answer to any of those makes you uncomfortable, now is the time to address it.
How I can help you get ready
As an outsourced HR consultant in Milton Keynes working across the UK, I work with small and medium-sized businesses in the UK to make sure their processes are solid before problems arise.
I can review your current probation and dismissal procedures, train your managers on what fair process looks like under the new rules, and support you through individual cases so that every decision you make is legally sound.
If you're not sure whether your current approach will hold up after 1 July, it's worth getting that checked now rather than finding out when it's too late. Get in touch and let's have a conversation. I'm always happy to help 📱 0781 3084152 or email 📧 daxa@hrresultsltd.co.uk Taking your HR from 'to do' to 'done'.
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