Looking Beyond Probation: The Real Risks in Dismissal

There’s a common myth we still hear from employers:

“They’re on probation, so we can just dismiss them right?”

Unfortunately, it isn’t quite that simple.

You see Probationary Periods mean NOTHING in Employment Law. Not one law mentions using probationary periods. They are a HR construct.

A probationary period can be an extremely useful management tool. It gives you a defined period in which to assess whether someone is performing to the required standard, behaving appropriately and, ultimately, is right for your nursery.

They are also a period when the new hire is deciding if you are right for them!

Probation is a contractual arrangement, not a legal shield.

Presently from day one of employment, employees have important legal protections. These include protection against discrimination and certain automatically unfair reasons for dismissal. Employee’s have the right to receive a written statement of terms and conditions on day one, and if you use probationary periods, their use should be in the written statement.

So, if the real reason for a dismissal is connected to a disability, pregnancy, race, sex or another protected characteristic, the fact that someone is still in their probationary period will not make the problem disappear.

And probation is about to become even more important

From 1 January 2027, the qualifying period for bringing an ordinary unfair dismissal claim reduces from two years to just six months. Employees who already have six months’ service on that date will gain the protection immediately.

That’s an enormous change for employers.

It means the days of allowing performance or conduct concerns to drift for 12, 18 or even 23 months before finally deciding to deal with them need to end.

So when it comes to probationary period dismissals it’s about the why, not simply the when

When advising on a probationary dismissal, one of the most important questions we ask is:

“What is actually driving this decision?“

Take absence as an example.

An employee has had a significant amount of absence during their first three months. On the face of it, you may reasonably be questioning whether their attendance is sustainable.

But what if some or all of that absence relates to a health condition which could meet the legal definition of disability? If so are you satisified that you are not dealing with absence that you would be expected to make reasonable adjustments for if the employee in question has a disability that meets the definition of disabled in the Equality Act 2010.

What initially looked like a straightforward probationary issue suddenly requires much more careful consideration as you may be walking into a disability discrimination claim under the Equality Act 2010.

In order to avoid a claim you may need to understand the underlying circumstances, consider medical evidence where appropriate, explore reasonable adjustments and demonstrate that these issues were genuinely considered before deciding what happens next.

That does not mean an employee with a disability cannot be dismissed. Nor does it mean an employer has to accept unlimited absence, unacceptable conduct or poor performance indefinitely.

It means the decision needs to be properly thought through and the employer needs to be able to explain why dismissal was the appropriate outcome.

Be clear, manage with good intentions.

If someone isn’t meeting expectations during probation, please tell them and write it down.

Set clear standards. Give examples. Keep notes. Offer appropriate support. Hold probation reviews when you said you would. If improvement is required, explain what improvement looks like and by when.

And, crucially, make a decision.

Extending probation simply because a manager doesn’t want to have a difficult conversation isn’t good management. Neither is passing someone at the end of probation when everyone already knows there are significant concerns.

The bottom line

You can dismiss someone during probation.

But “they were on probation” isn’t the reason for dismissal.

Was it their performance? Conduct? Attendance? Capability? Something else?

And is there anything underlying that concern which creates additional legal risk?

Probation shouldn’t be three months of hoping for the best followed by an awkward conversation.

Use it. Manage it. Document it. And make the decision you need to make.

Our Performance Management Toolkit is launched on 2nd November 2026.