Probation and the Employment Rights Bill
There are significant changes expected under the Employment Rights Bill, which will impact how employers manage probation and early performance concerns. The unfair dismissal right is moving towards a six-month qualifying period, and the latest updates suggest this is likely to land next year. While we await the final details, employers should act now to make sure their probationary processes are fit for purpose.
Once an individual qualifies for unfair dismissal protection, employers must be able to show a fair reason for dismissal and that they followed a fair process. We have set out key themes and practical steps below.
What does the change mean for employers?
The government’s U-turn means employers are still likely to have more flexibility to dismiss within the first six months without the same unfair dismissal exposure. However, the key risk is leaving performance concerns too late. If issues are identified late in the probation period, employers may not have enough time to address concerns fairly before the qualifying point is reached.
Once an employee qualifies, dismissal is no longer simply a matter of “it is not working out”. Employers will need a fair reason and a fair process to support any decision to terminate employment.
Probationary period processes will need strengthening
Many employers treat probation as a formality, with limited check-ins and a decision made close to the end of the period. A shorter qualifying period increases the importance of structured probation management.
Employers should ensure they adequately monitor performance and address concerns early. This includes setting clear expectations, providing feedback, and keeping a record of conversations and support offered. If probation is treated as a process rather than a date in the diary, employers will be far better placed to manage risk fairly and consistently.
Manager capability and communication
One of the most common reasons businesses become exposed is not bad intent, but inconsistent management. Managers may avoid early conversations, give vague feedback, or fail to document concerns. Employers should ensure managers understand the change and what the business expects from them during probation periods.
Employers should also communicate any policy updates internally so there is a consistent approach across teams.
Acting promptly when issues arise
Employers should not leave it too long to monitor staff performance. Where issues arise, action should be taken promptly. This does not mean being harsh or unreasonable, but it does mean managing concerns properly.
This may include:
- Clear feedback and expectations
- Support and training where appropriate
- Regular follow-ups and review points
- Written notes so there is a clear record of what has taken place
A fair process is always easier to evidence when action is taken early.
Recruitment practices and onboarding
Employers should also review recruitment practices to ensure they are thorough enough to recruit the right individuals. Clear role expectations and strong onboarding reduce the likelihood of probation concerns later and support a fairer employment relationship overall.
Notice and the qualifying period
A detail that is often missed is that qualification for unfair dismissal rights is likely to include statutory notice. This means employees are likely to qualify for unfair dismissal around a week before their six-month anniversary with the company. Employers should be mindful of this when planning probation reviews and decision points.
Conclusion
The move to a six-month qualifying period will make probation and early performance management even more important. Employers should review probation processes now, ensure managers are informed and equipped to act, and take performance concerns seriously at an early stage.
Do get in touch with us if you would like to know more about the changes and their effect on your employment practices.
Please note this is a general overview only, and specific legal advice should be sought when dealing with complex matters.
