Yes, you can still dismiss someone during probation

Advice from an HR consultant in Ipswich on dismissing employees during probation under the new unfair dismissal rules taking effect from 2027.

The Employment Rights Act has changed the rules around dismissing employees early in their employment.

From 1 January 2027, the qualifying period for unfair dismissal protection drops from two years to six months.

If you run a small business, that shift matters more than you might realise.

The good news is you can still let someone go during probation. But the way you do it needs to look very different from what you're used to.

Here's what you need to know.

What's actually changing

Anyone you take on from 1 July 2026 onwards will fall under the new rules. After just six months of service, they'll have the right to challenge their dismissal as unfair.

Previously, you had a two-year window. That gave you plenty of breathing room to work out whether a new hire was right for the role. If things weren't clicking, you could part ways informally without much legal exposure.

That breathing room has shrunk dramatically.

The new legislation introduces what's being called a statutory initial period of employment. Think of it as a formal probation window built into the law. But here's the catch: employees can still bring a claim during that initial period. The protection starts sooner than most business owners expect.

What you're still allowed to do

Let me be clear on this. You haven't lost the right to dismiss someone during their early months.

You can still end someone's employment for poor performance or conduct. You can still make the call that a role isn't working out. None of that has been removed.

What's different is the bar you'll need to clear if that person decides to challenge your decision. The standard of fairness now applies much earlier, and you'll need to demonstrate that you acted reasonably.

The practical steps that protect you

If you're going to let someone go within their first six months, you need a clear trail of evidence. That means:

• Raising concerns early, being specific about what the issues are, and putting it in writing

• Giving the person clear feedback on what needs to improve

• Allowing a genuine opportunity for them to get better

• Following a consistent process that you'd apply to anyone in the same situation

If you can't show those things happened, you're exposed. It really is that simple.

The informal chat followed by a parting of ways doesn't cut it any more. Every conversation about performance needs to be documented. Every expectation needs to be written down.

How long should your probation period be?

I get asked this a lot, and the honest answer is that nobody has settled on a definitive number yet.

There's no legally mandated probation length under the new rules. Different HR professionals and employment lawyers are landing in completely different places. Some favour three months. Others are recommending five or six.

My advice? Don't get hung up on the number itself.

A well-structured three-month probation with regular check-ins and documented feedback will protect you far better than a six-month probation where nothing is written down and no reviews take place. The quality of what happens during probation matters far more than how long it lasts.

Where things go wrong

Through my HR consultancy services in Ipswich, I see the same patterns come up repeatedly when a dismissal gets challenged. The most common issues are:

• No written record that concerns were ever raised with the employee

• No evidence of support or feedback being offered

• The company's own procedures weren't followed

• Different employees were treated differently in similar circumstances

• A manager avoided the difficult conversation and hoped the problem would resolve itself

Every single one of those is avoidable. You don't need complicated systems or expensive software. You need a consistent approach and the discipline to document what's happening.

Manager capability is now a bigger deal

A lot of the risk I see doesn't come from bad policies. It comes from managers who aren't equipped to handle difficult conversations early enough.

Under the old two-year qualifying period, a manager could afford to wait and see. They could put off addressing a performance concern for weeks or even months without creating legal risk. That luxury has gone.

With the qualifying period now at six months, your managers need to be having honest conversations from week one. They need to set clear expectations during onboarding. They need to run structured probation reviews. And when something isn't right, they need to address it promptly rather than letting it drift.

If your managers aren't confident doing those things, that's a gap worth closing before the new rules take effect.

Questions worth asking yourself

Before 1 July 2026, it's worth taking stock of where you stand. Consider these:

• Do your managers know how to document a performance concern properly?

• Are your probation reviews structured with written records, or do they happen informally over a coffee?

• If a new hire challenged their dismissal tomorrow, could you produce a paper trail showing you acted fairly?

• Have you reviewed your onboarding process to make sure expectations are set clearly from day one?

If any of those give you pause, now is the time to act on it.

How I can help

I can review your current probation and dismissal processes to check whether they'll hold up under the new rules. I can also work with your managers to build their confidence in running structured reviews and having those early conversations that make all the difference.

If you're not sure where you stand, it's better to find out now than to discover the gaps when a claim lands on your desk.

As an outsourced HR consultant in Ipswich, I'm always happy to have a conversation about what you need. Get in touch and let's book a discovery call to talk it through.