Are you wondering how your approach to failed probation will need to change when employees gain protection from unfair dismissal after six months? The short answer is that you will still be able to dismiss for fair reasons during probation, but you will need a clearer, more transparent process much earlier. For UK employers, this means tightening documentation, improving review points, and evidencing support.
We outline what would change, how to run a fair probation exit, what to update in contracts and policies, and how to balance legal compliance with values-led practice. We also include a practical timeline to follow across the first six months.
What exactly is changing with unfair dismissal protection at six months?
The core change would be the qualifying period for ordinary unfair dismissal reducing to six months. You would still need a fair reason and a fair procedure to dismiss.
Today, under the Employment Rights Act 1996, most employees need two years’ service to claim ordinary unfair dismissal, although there are automatic unfair reasons from day one such as health and safety or whistleblowing. See the government overview in GOV.UK guidance on unfair dismissal. If legislation reduces the qualifying period to six months, the duty to show a fair reason and a fair, reasonable process would apply much sooner. Probation would remain a contractual tool, not a legal status, so process and evidence would matter more, not less. It is easy to assume probation gives wide discretion. It does not remove the need to act fairly.
We expect Parliament to preserve probation as a legitimate part of recruitment, but to require transparency, clear standards and reasonable steps to support improvement before dismissal. This is where it matters most for ethical employers.
How should you handle a failed probation once six‑month protection applies?
You should follow a short, capability‑focused process that is reasonable, documented, and genuinely supportive before deciding to dismiss.
Follow these steps to keep it proportionate and fair:
1) Set expectations in writing
- Give a role profile with measurable standards in week one. Confirm the probation length, review points and success criteria in the contract and welcome pack.
2) Hold regular reviews with evidence
- Run check‑ins at weeks 2, 6, 12 and 20. Keep notes, examples of work, customer feedback and training logs.
3) Offer support and reasonable adjustments
- Provide coaching, shadowing, and, where applicable, reasonable adjustments under the Equality Act 2010. Note what was offered and the outcome.
4) Issue a clear warning if standards stay below the mark
- Give a written improvement plan with specific goals, support, and a short review period. Explain that dismissal is possible if standards do not improve.
5) Invite to a probation review meeting
- Share the concerns and evidence in advance. Allow the employee to respond. Consider allowing a companion in line with good practice.
6) Decide and confirm in writing
- If performance remains below standard, give reasons, notice, and the right of appeal. Pay notice and accrued holiday per contract and statute.
7) Learn and improve
- Review your selection, induction and training. Fix gaps that drive early attrition.
The Acas Code of Practice on disciplinary and grievance procedures expects fairness, transparency and an opportunity to respond. Tribunals may adjust awards by up to 25% if a party unreasonably fails to follow the Code.
What counts as a fair reason for dismissal at or after six months?
The fair reasons remain the same:
- Capability
- Conduct
- Redundancy
- Statutory restriction
- Some other substantial reason
You must use a fair process.
Section 98 of the Employment Rights Act 1996 sets out these potentially fair reasons. For probation, the usual reasons are capability or conduct. Examples include sustained underperformance against clear goals, repeated errors despite coaching, or serious misconduct. Cultural fit alone is not a fair reason. If work has genuinely disappeared, redundancy may be fair, but you must follow a redundancy process and consider alternatives. Always document your rationale and the steps taken to support improvement before dismissal.
Ethical employers gain from transparent standards. Clear evidence and constructive feedback protect trust with your team and with future recruits.
Do you need to change your probation policies and contracts now?
Yes. You should update contracts, policies and manager guidance so they reflect earlier unfair dismissal protection and set out a fair, light‑touch process.
Use this quick checklist to get started:
- Contracts and offer letters: Confirm probation length, review points, and notice during and after probation. Keep notice at or above the statutory minimum.
- Probation policy: Add the review cadence, support steps, improvement plans and appeal rights. Explain how decisions are made.
- Manager guidance: Provide templates for review notes, improvement plans, and outcome letters. Train managers to use them.
- Right to be accompanied: Allow a companion where a formal warning or dismissal may follow. This mirrors the spirit of the Employment Relations Act 1999.
- Data and retention: Keep proportionate records of performance evidence and meetings, aligned with the UK General Data Protection Regulation (UK GDPR).
We will flag the exact clauses to update and where wording may create risk.
What process is enough to be “fair” for a probation failure?
A shorter, capability‑focused process can be fair if it is reasonable, timely, and documented. You do not always need a full disciplinary route.
What a proportionate process includes:
- Clear standards: Role profile and probation criteria provided at the outset.
- Evidence: Real examples of work, training provided, feedback dates, and any adjustments offered.
- Opportunity to improve: A short improvement plan with a review period that matches the issues.
- Meeting to respond: An invite with concerns in advance, time to prepare, and a chance to present evidence.
- Reasoned decision: Outcome letter with reasons, notice, and the right of appeal.
According to GOV.UK guidance on notice periods, once an employee has worked at least one month, the statutory minimum notice you must give is one week, unless the contract gives more generous notice.
How will risk and cost change for small charities and ethical SMEs?
Risk arrives earlier, but the cost is manageable if you plan ahead and follow a fair, light‑touch process.
- Earlier exposure: Claims for ordinary unfair dismissal could arise after six months rather than two years. Keep evidence from week one.
- Compensatory limits: Unfair dismissal compensation is capped at the lower of a statutory maximum or 52 weeks’ pay, plus a basic award. See GOV.UK unfair dismissal guidance for current limits.
- Process uplift risk: Failure to follow the Acas Code can increase awards by up to 25%.
- Insurance and settlement: Consider whether your legal expenses insurance and settlement approach need a refresh in light of earlier risk.
What this means for values‑led employers: Early support and transparent conversations reduce claims and strengthen culture. Your reputation as a fair employer is an asset in a tight labour market.
What timeline should hiring managers follow from day one to month six?
A simple, consistent rhythm helps you spot issues early and show fairness if you need to exit during probation.
Timeline expectation:
- Week 1: Share role standards, training plan and probation criteria. Log any adjustments agreed.
- Week 2: Quick check‑in. Confirm understanding, remove blockers.
- Week 6: Review against two or three measurable goals. Add coaching tasks.
- Week 12: Mid‑probation review. If gaps persist, issue an improvement plan with clear targets and a 4 to 6 week review.
- Week 16: Check progress against the plan. Increase support or escalate concerns.
- Week 20: Pre‑final review. If still below standard, send a meeting invite with evidence.
- Week 22–24: Probation review meeting, decision, and confirm outcome with notice and appeal details.
Should you change hiring, induction and training to reduce failed probation?
Yes. Strengthen selection, onboarding and coaching. This improves performance and reduces early attrition claims.
Three high‑impact moves:
- Tighten role design and selection: Use work samples and structured interviews to test real skills. This reduces mismatches that surface at month three.
- Front‑load onboarding: Deliver a 30‑60‑90 day plan with achievable milestones. Pair with a buddy, not just a manager.
- Coach early and often: Train managers to give specific feedback weekly. Reinforce strengths and correct fast.
Anonymised case study: A renewable energy start‑up we supported introduced structured work samples and a 90‑day plan. Probation failures fell by 35% year on year, and time‑to‑competence improved by four weeks.
We tailor documents, training and coaching to your size and sector.
Do appeals, companions and documentation still matter at probation stage?
Yes. Even a short process should include a right of appeal, appropriate accompaniment, and clear records to show reasonableness.
- Appeals: Offer a brief appeal window and a fresh pair of eyes to hear it. This often resolves issues quickly.
- Companions: If a warning or dismissal may result, allowing a companion is good practice and aligns with the spirit of the Employment Relations Act 1999.
- Records: Keep proportionate notes of meetings, evidence and decisions. Under the UK GDPR, store only what you need, for only as long as you need it.
How do charities and purpose‑led SMEs balance compassion with compliance?
Lead with clarity and kindness, and document the support you provide. Fairness and compassion go together when expectations are explicit.
Practical actions that show both:
- Values in writing: Link probation goals to your mission and behaviours.
- Support with boundaries: Offer help, but be clear about the minimum acceptable standard.
- Honest closure: If it is not working, explain why, thank them for their effort, and provide practical next steps.
People remember how you treated them on the way out. A fair, humane probation exit can strengthen your employer brand.
Ready to update your documents, train managers, or get hands‑on support with a tricky probation case?
- Book a supportive call today: Free consultation with Specialised HR
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FREQUENTLY ASKED QUESTIONS
What does unfair dismissal after six months actually mean?
It means ordinary unfair dismissal rights would start after six months’ service. You would still need a fair reason and a fair process.
In practice this involves:
- Setting clear performance standards and support from week one.
- Holding a fair meeting and letting the employee respond.
- Confirming any dismissal decision with reasons, notice, and an appeal. Automatic unfair reasons, like whistleblowing, would still apply from day one and do not need a qualifying period.
Why is probation not a free pass to dismiss someone quickly?
Probation is a contractual tool, not a legal status, so fairness still applies. Tribunals look at reasonableness, evidence, and process even during probation. A fair, proportionate capability process usually includes:
- Clear standards and documented feedback.
- A short improvement plan and review.
- An opportunity to respond before a decision.
Following the Acas Code can reduce risk and demonstrates that you acted transparently and reasonably.
What are the fair reasons for dismissal during or after probation?
The Employment Rights Act 1996 lists five fair reasons. The most relevant at probation are capability and conduct. Others include redundancy, statutory restriction, and some other substantial reason.
Examples include:
- Ongoing underperformance despite support.
- Serious misconduct that undermines trust.
- Genuine role changes requiring redundancy. Always follow a fair procedure and record your rationale before dismissal.
What documents should I update if six‑month protection arrives?
You should review contracts, probation policies, and manager guidance. The goal is clarity and consistency.
Prioritise:
- Contracts: probation length, review points, and notice during probation.
- Probation policy: fair process, improvement plans, and appeals.
- Templates: invites, improvement plans, and outcome letters.
If you want tailored wording, request a quick Free HR Docs Review.
How do I run a fair probation review that could lead to dismissal?
Keep it proportionate, clear, and well documented.
A good approach is:
- Share concerns and evidence in advance.
- Hold a meeting, allow a response, and consider a companion.
- Decide reasonably, then confirm outcome, notice, and appeal in writing. If time allows, give a short improvement plan first. This shows support and often fixes the issue without dismissal.
How much notice do I need to give if probation fails?
You must follow the contract or the statutory minimum, whichever is greater. After one month’s service the legal minimum is one week’s notice.
Check:
- Contractual notice during probation.
- Payment in lieu clauses, and any accrued holiday.
- Any enhanced notice you have promised.
See GOV.UK guidance on notice periods.
How can I reduce the risk of unfair dismissal claims at probation stage?
Invest early in clarity and support, then document what you do.
Proven steps include:
- Front‑load onboarding with a 30‑60‑90 plan and a buddy.
- Use work samples at recruitment to test real job skills.
- Coach weekly for the first month, then bi‑weekly.
- Keep short notes of reviews, training, and feedback. Most issues resolve with early support, which reduces claims and costs.
Can I dismiss for poor cultural fit during probation?
No, cultural fit alone is not a fair reason for dismissal. Focus on objective capability or conduct instead.
To stay safe:
- Translate values into observable behaviours and standards.
- Give examples where behaviours affect performance or conduct.
- Offer a chance to improve with clear goals. Decisions based on vague “fit” are risky and hard to defend at tribunal.
Do I need to offer an appeal if I dismiss during probation?
Yes, offering an appeal is good practice and supports fairness. An appeal allows a fresh review and can correct errors.
Practical tips:
- Set a short window, for example five working days.
- Use a different manager or adviser to hear it.
- Confirm the appeal outcome with reasons in writing. Appeals often resolve issues without further escalation.
What should I do if new facts emerge after I give notice?
Pause and review the decision fairly. Acting reasonably reduces risk and can show good faith.
Steps to take:
- Consider the new evidence and, if needed, re‑convene the meeting.
- Take advice if the facts suggest discrimination or whistleblowing.
- Confirm any revised outcome in writing. Being open to new information helps you reach a sound, defensible decision.
Related Resources
Talk through a live probation issue or plan your policy updates with one of our ethical HR experts.
Explore flexible, values‑led HR support, from documents and training to hands‑on employee relations.
Get a rapid risk check on your contracts, probation policy and letters before the law changes.
Further Reading
Official overview of fair reasons, qualifying periods, and compensation limits for unfair dismissal.
Guidance on fair process, including the risk of up to 25% award adjustments for non‑compliance.
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