BLOGS
Dismissing an Employee During Probation
Performance Grounds, Legal Pitfalls, and the 2027 Statutory Reforms
Managing a new hire who isn't hitting the mark can be incredibly challenging. You want to give them a fair shot, but you also need to protect your business, project timelines, and team dynamics. If you have an employee on a six-month probationary period whose performance is poor, you might naturally wonder: Can you let them go immediately, before the end of the probation period?
The short answer is yes, but doing it without a clear, defensible process carries hidden legal risks—and those risks are about to get significantly higher. Below is a comprehensive guide on navigating a performance-based dismissal during probation under current rules, alongside a crucial strategy roadmap for the upcoming legislative updates.
The Current Framework: Rights and Constraints
Right now, an employee with less than two years of continuous service generally cannot claim ordinary unfair dismissal. Because of this legislative threshold, many employers assume they can bypass formal procedures entirely during a probation period. However, "low risk" does not mean "zero risk." Even on day one of probation, an employee can immediately bring a claim against your organization for:
- Discrimination Claims: Claims based on protected characteristics under the Equality Act 2010 (such as race, gender, age, disability, or sexual orientation) require zero length of service to bring to a tribunal.
- Automatically Unfair Dismissal: If an employee claims they were let go for whistleblowing, raising valid health and safety concerns, or exercising statutory rights, the two-year rule is entirely bypassed.
- Wrongful Dismissal (Breach of Contract): If you terminate them on the spot without providing or paying their contractual notice period (usually the statutory minimum of one week, unless gross misconduct is proven), they can sue for breach of contract.
The Best Practice Dismissal Procedure
To defend your business against future claims and ensure equitable treatment, you should avoid abrupt dismissals without prior communication. Instead, utilize this legally defensible step-by-step review process:
|
Stage |
Process Step |
Core Operational Requirements |
|
Step 1 |
Formal Review Meeting |
Invite the employee to a formal meeting with reasonable notice. State clearly that termination of their contract is a potential outcome. Remind them of their statutory right to be accompanied by a colleague or trade union representative. |
|
Step 2 |
Present the Evidence |
Clearly lay out where their performance is falling short. Provide objective, concrete examples, dates, and clear metrics rather than subjective or vague feedback. |
|
Step 3 |
Allow Response |
Give the employee a genuine opportunity to explain the performance dip. There could be underlying, undisclosed mitigating factors (such as an unaddressed medical condition or a gap in reasonable training provision) that must be considered before a final decision. |
|
Step 4 |
Confirm in Writing |
If you proceed with dismissal, issue the formal decision in writing, including explicit details on their right to appeal. Ensure they receive correct notice pay (or payment in lieu of notice) alongside all accrued, untaken holiday entitlement. |
⚠️ Critical Compliance Alert: The Rules Are Changing
A massive legal shift is on the horizon under the Employment Rights Act 2025. With effect from 1 January 2027, the qualifying service required for employees to claim ordinary unfair dismissal will be reduced from two years to just six months. Because this change will apply retrospectively, any employee with six months of continuous service on that date will instantly gain full unfair dismissal protections.
Strategic Action Items for Forward-Thinking Employers
If you run a traditional six-month probation period and wait until the final week to address performance concerns, you will expose your organization to significant risk post-2027. If a dismissal process drags even a day past the six-month mark, an employee can claim full unfair dismissal if your process wasn't flawlessly executed. Consider adjusting your HR strategy today:
- Shorten Standard Probationary Periods: Transition immediately to a three-month standard probation window, structured with an explicit contractual option to extend up to six months if required. This gives your management teams an early formal milestone to assess, support, or safely terminate underperforming staff well before the six-month statutory deadline.
- Review Employment Contracts Now: Audit template contracts to ensure they clearly articulate a shorter notice period (e.g., one week) applicable strictly during the probationary period compared to the longer post-probation notice frameworks.
- Document Performance Data Rigorously: Implement standardized, early-stage logging of all training programs, target metrics, and performance checkpoint feedback from day one. Clear documentation remains your primary, indispensable tool for mitigating tribunal risks.