The short answer is yes. An employee can be dismissed during a probation period, but it is not as straightforward as many employers believe.
One of the biggest misconceptions is that being on probation means an employee has very few employment rights or that an employer can end employment without explanation or process.
Whilst employees with less than two years’ service generally cannot bring an ordinary unfair dismissal claim under the current rules, they still benefit from a wide range of statutory rights from the first day of employment. Employers who fail to recognise this can find themselves facing unnecessary legal risk, even where an employee has only been employed for a matter of weeks.
For social sector organisations, where recruitment often requires a significant investment of time, funding and resource, dismissing an employee during probation can feel particularly difficult. Managers may worry about making the wrong decision, while smaller organisations without dedicated HR support may be unsure how much process is required.
The landscape is also changing. From 1st January 2027, the Employment Rights Act (ERA) will reduce the length of service required to bring a claim for unfair dismissal from 2 years to 6 months. This means that social sector employers will have a much shorter period in which they can dismiss with relatively low unfair dismissal risk and probation periods will become more strategically important with managers needing to identify and address performance, conduct and attendance concerns much earlier.
In this guide, we explain what a probation period is, when an employee can be dismissed, the process employers should follow, what to say when terminating employment during probation and how organisations can prepare for the changes ahead.
What is a probation period?
A probation period is an initial period of employment that allows both the employer and the employee to assess whether the role is the right fit.
For employers, it provides an opportunity to review performance, capability, attendance, conduct and how well someone is settling into the organisation. For employees, it offers time to understand the role, learn new systems, build relationships and decide whether the organisation meets their own expectations.
Although probationary periods are common practice across most sectors, they are not a legal requirement. Instead, they form part of the contract of employment and should clearly explain how long the probationary period will last, how performance will be assessed and what may happen if the required standards are not met.
Importantly, probation does not remove an employee’s statutory employment rights. From their first day of employment, employees remain protected by legislation covering discrimination, whistleblowing, health and safety, family-related rights and unlawful deductions from wages. This means employers should always approach probationary dismissals fairly, even where the individual has only recently joined the organisation.
Can an employee be dismissed during a probation period?
Yes, an employee can be dismissed during a probation period if there is a genuine reason for doing so and the employer has followed a fair and reasonable process. Although the legal risk associated with ordinary unfair dismissal is currently lower for employees with less than two years’ service, probation should never be treated as a shortcut for ending employment and managers need to be mindful that someone employed from July 2026 will have length of service to claim unfair dismissal from 1st January 2027. A dismissal that appears rushed, inconsistent or linked to a protected characteristic can still expose an organisation to costly legal claims and reputational damage.
The purpose of probation is not simply to identify employees who are not suitable for the role. It is also to provide appropriate support, regular feedback and a reasonable opportunity for improvement. Where concerns remain after this process has been followed, dismissal may be the most appropriate outcome.
Fair reasons for dismissal during probation
There are several legitimate reasons why an employer may decide to dismiss an employee during probation.
Poor performance is one of the most common. An employee may be unable to achieve the required standards despite receiving appropriate support, training and feedback. In other situations, concerns may relate to conduct, such as repeated lateness, failure to follow organisational policies or behaviour that falls below expected standards.
Employers may also need to consider dismissal where there is persistent unexplained absence, an inability to carry out the duties of the role or evidence that the employee does not possess the necessary skills or experience they demonstrated during recruitment.
Whatever the reason, it is essential that concerns are documented throughout the probationary period. Records of review meetings, examples of performance concerns and evidence of support offered will help demonstrate that the decision was fair, proportionate and based on objective evidence rather than assumptions or personal opinion.
Automatically unfair reasons for dismissal
Whilst many employers focus on the current two-year qualifying period for unfair dismissal, it is equally important to understand the circumstances where an employee can bring a claim regardless of their length of service.
A dismissal may be automatically unfair if it is connected to pregnancy or maternity, whistleblowing, raising health and safety concerns or exercising a statutory employment right. Similarly, dismissing an employee because of a protected characteristic under the Equality Act 2010, such as disability, race, age, religion, sex or sexual orientation, may amount to unlawful discrimination from day one of employment.
These protections apply whether an employee has been employed for two days, two months or two years. This is why employers should avoid making assumptions that probation removes legal obligations.
Can an employee claim unfair dismissal during probation?
Under the current rules, employees generally need two years’ continuous service before they can bring an ordinary unfair dismissal claim. However, this does not mean employers are protected from every legal challenge. Employees may still be able to pursue claims relating to discrimination, whistleblowing, breach of contract or automatically unfair dismissal, regardless of how long they have worked for the organisation. And, as we have advised, that length of service requirement for new starters is now considerably less than 2 years’ service.
For this reason, following a fair and consistent process remains good practice. Employers who communicate expectations clearly, hold regular probation reviews and document concerns throughout the probationary period are in a much stronger position should their decision ever be questioned.
Just as importantly, treating employees fairly supports a positive workplace culture and demonstrates the values that many social sector organisations seek to uphold.
How to dismiss an employee during probation
Dismissing an employee during probation does not usually require the same level of formality as a disciplinary dismissal involving a long-serving employee. However, it should still follow a fair, structured and consistent process.
Taking the time to manage probation properly often allows concerns to be addressed before dismissal becomes necessary. Where employment does need to end, employers can demonstrate that the decision has been made fairly and reasonably.
Set clear expectations from the start
A successful probation period begins long before concerns arise. Employees should understand exactly what is expected of them from their first day, including the standards of performance, behaviours and objectives they will be assessed against.
Without clear expectations, it becomes much more difficult for employers to demonstrate that an employee has genuinely failed to meet the requirements of the role. Objectives should be discussed during induction, documented in writing and revisited throughout the probationary period so that both parties have a shared understanding of what success looks like.
Hold regular review meetings
One of the most common mistakes employers make is waiting until the end of the probation period before discussing concerns. By this stage, the employee has had little opportunity to improve, and dismissal can come as an unexpected outcome.
Regular probation review meetings provide managers with the opportunity to recognise progress, discuss concerns openly and identify any additional support or training the employee may need. These conversations should be constructive, honest and focused on improvement rather than criticism. Keeping accurate notes of each meeting also provides valuable evidence that concerns were raised and discussed throughout the probationary period.
Give the employee an opportunity to respond
Before any decision to dismiss is made, the employee should be invited to a formal probation review meeting. This meeting gives the employer an opportunity to explain the concerns that have been identified while allowing the employee to respond, provide context or highlight any factors that may have affected their performance.
Taking time to listen before reaching a final decision demonstrates fairness and helps employers avoid making assumptions based on incomplete information.
Issue the correct notice
If the decision is made to terminate employment, employers should check both the contract of employment and the statutory minimum notice requirements. Employees who have completed at least one month’s service are generally entitled to one week’s statutory notice unless their contract provides for a longer period.
Employers should also ensure that any accrued but untaken annual leave is included within the employee’s final pay.
Offer the right of appeal
Although there is currently no strict legal requirement to offer an appeal following a probationary dismissal, doing so is widely recognised as good practice.
An appeal demonstrates procedural fairness, allows employees to raise any concerns about the decision and provides employers with an opportunity to review whether the process has been followed correctly. In some cases, an appeal may also prevent disputes from escalating further.
Document everything
Good record keeping underpins every successful probation process. Managers should retain notes of probation objectives, review meetings, feedback provided, support offered and the reasons behind any final decision. These records provide an important audit trail and can be invaluable if the dismissal is later challenged.
What to say when terminating an employee during their probation period
One of the questions employers ask most often is what to say when terminating an employee during their probation period. Whilst these conversations are rarely easy, they should always be clear, honest and respectful. Avoid vague explanations such as “it just isn’t working out” or “we don’t think you’re the right fit” without providing any context.
Instead, explain that the decision follows the concerns discussed throughout the probationary period, refer to the review meetings that have taken place and outline the specific reasons why the required standards have not been met. Keep the conversation factual, avoid unnecessary criticism and allow the employee the opportunity to ask questions.
Following the meeting, employers should confirm the decision in writing, including the reason for dismissal, the employee’s notice period, details of their final pay and, where offered, the right to appeal.
If you require support managing probationary dismissals or drafting dismissal documentation, our Dismissals and Settlement Agreements service can provide practical guidance tailored to your organisation.
Employment Rights Act 2027: What’s changing for probationary dismissals?
One of the biggest employment law changes on the horizon is the reduction in the length of service required to bring a claim for unfair dismissal from 2 years to 6 months. This change will happen from 1st January 2027, but the clock is already ticking – any employee you engage from July 2026 will only need 6 months length of service to have the right to bring a claim for unfair dismissal.
Many organisations currently operate a six-month probation period, often with a review meeting at the end. Under the new regime, waiting until month six to decide whether someone passes or fails probation may be too late because the employee may already have acquired unfair dismissal rights.
Social sector organisations may want to be considering now a move towards:
- Three-month probation periods; or
- Four-month probation periods; or
- Three-month probation periods with the option to extend by one or two months if concerns remain.
What will good practice look like?
For social sector organisations we would expect future best practice to include:
- Shorter probation periods (typically 3–4 months).
- Formal probation review points at 1 month, 3 months and before confirmation in post.
- Clear objectives and standards set from the start.
- Documented feedback and support where concerns arise.
- Early decision-making rather than allowing concerns to drift.
- Manager training on probation management.
How to prepare before January 2027
Now is an ideal opportunity to review probationary policies, strengthen probation review documentation, ensure contracts clearly set out notice provisions and provide managers with training on how to manage performance conversations confidently and consistently.
Need support with probationary dismissals?
Managing probationary dismissals can feel uncertain, particularly for social sector organisations without dedicated HR support. Balancing fairness, legal compliance and operational needs is not always straightforward, especially as employment law continues to evolve.
At Roots HR, we provide practical, people-focused HR advice to help organisations confidently manage probation periods, performance concerns and employee dismissals while ensuring processes remain fair, consistent and legally compliant.
As part of our social impact commitment, we offer up to one hour of free HR consultancy to eligible social sector organisations.
You can use your free hour to:
- Discuss a probationary dismissal or performance concern.
- Review your probation policy and documentation.
- Explore options before making a dismissal decision.
- Receive guidance on preparing for the Employment Rights Act changes.
- Strengthen your wider people management processes.
Our experienced HR consultants can provide support by phone, email or Microsoft Teams, and your free hour can be used in one session or split into shorter consultations to suit your organisation’s needs.
If you would like practical support with probationary dismissals or preparing your organisation for the changes ahead, we’d be delighted to help, book some time in with us here – Charity HR | Free HR Consultation for Charities | Roots HR
Frequently Asked Questions
Do I need to follow a process when dismissing someone on probation?
Yes. Although the process is usually less formal than a disciplinary procedure for a long-serving employee, employers should still set clear expectations, hold review meetings, explain concerns, give the employee an opportunity to respond, provide the correct notice and document the decision.
Can an employee on probation claim unfair dismissal?
Most employees currently need two years’ service before bringing an ordinary unfair dismissal claim. However, claims relating to discrimination, whistleblowing and automatically unfair dismissal can often be brought from day one of employment.
How much notice do I need to give when dismissing someone during probation?
Employees who have completed at least one month’s service are generally entitled to one week’s statutory notice, although contracts of employment may provide for a longer notice period. Employers should always check the contract before confirming dismissal.
What is changing under the Employment Rights Act 2027?
From 1st January 2027, the Employment Rights Act (ERA) will reduce the length of service required to bring a claim for unfair dismissal from 2 years to 6 months. This means that social sector employers will have a much shorter period in which they can dismiss with relatively low unfair dismissal risk and probation periods will become more strategically important with managers needing to identify and address performance, conduct and attendance concerns much earlier.
