Six-Month Unfair Dismissal Risk: Probation Clause Review

For years, many small employers have treated probation as a low-risk exit lane. A contract says "six-month probation," the manager decides someone is not working out, and the business assumes it can end things quickly.

That habit needs review.

The published government timetable says that, for dismissals from 1 January 2027, the qualifying period for ordinary unfair dismissal will reduce from two years to six months, and the cap on compensatory awards will be removed. See Business.gov.uk's unfair dismissal guidance and the GOV.UK implementation timeline for the current official wording.

This article is general guidance, not legal advice. Use it to identify what to review, then get final wording and dismissal-process decisions checked by a qualified employment adviser.

The problem with a six-month probation clause

A six-month probation period can look neat on paper, but it creates a timing problem:

• managers often wait until late in month five to discuss performance;
• notice can push the termination date past the six-month mark;
• informal warnings are not recorded;
• "probation extension" is used casually without a clear contractual basis;
• the employee gets no written reason, no appeal, and no evidence trail.

That may have felt administratively normal under the old risk model. It is a weaker habit under a shorter qualifying period.

What good probation wording should cover

You are not trying to turn probation into a tribunal-proof ritual. You are trying to make the contract and the manager process say the same thing.

Review whether your clause covers:

1. Length. How long probation lasts, and from what date.
2. Review points. When manager check-ins happen before the final week.
3. Extension. Whether extension is allowed, how long for, and how it is confirmed.
4. Notice. What notice applies during probation and after confirmation.
5. Process. What minimum meeting, reason and record happens before termination.
6. Evidence. Where performance notes, objectives and support offers are kept.

The clause is only one part. If managers do not use the process, the clause is decoration.

The 5-months-and-3-weeks problem

The uncomfortable case is not the obvious month-two failure. It is the employee who is still struggling at five months and three weeks.

At that point, the business may have:

• not held a documented review;
• not given clear objectives;
• not considered whether training or support was offered;
• not checked whether absence, disability, pregnancy, whistleblowing, trade union activity or another protected issue is involved;
• not checked whether notice changes the dismissal timing.

That is exactly the moment where a manager needs a script and a process, not a vague belief that "probation means we are fine."

A practical probation review checklist

Use this as an internal first pass:

• Pull the current contract template.
• Pull one recent offer letter and handbook.
• Check whether probation length, notice and extension wording match across all documents.
• Add diary reminders at months two, four and five for every new starter.
• Create a simple probation review note: expectations, support offered, concerns, next steps.
• Decide who signs off a probation termination before it is communicated.
• Have the wording and process reviewed by a qualified employment adviser.

The goal is not bureaucracy. The goal is to avoid making the first real record after the relationship has already broken down.

Where the free checker fits

Run the free ERA 2025 Contract-Risk Checker if you want a quick read on whether your probation, dismissal and variation habits are likely to need review. It asks short questions and gives a priority-ordered readout in your browser.

If probation is only one of several issues, the paid ERA 2025 Contract-Risk Audit builds a broader action plan and solicitor-brief pack for GBP 149 one-time.

FAQ

Does a probation clause remove unfair dismissal risk? No. Probation can help set expectations and process, but it does not remove all dismissal risk. Some claims are not dependent on ordinary unfair-dismissal qualifying periods.

Should probation be shorter than six months now? Maybe, but do not change it blindly. The right answer depends on the job, notice wording, review process and legal advice.

Can I extend probation? Only if your contract allows it and you do it properly. Extension should be documented, time-limited and linked to clear concerns.

Do I need a solicitor for every probation dismissal? Not always, but higher-risk facts should be checked: sickness, disability, pregnancy, whistleblowing, protected complaints, trade union activity, or anything close to the qualifying-period boundary.

Bottom line

Probation is still useful. What changes is the margin for sloppy timing. If your business has treated probation as "we can exit without thinking," review the wording, set earlier review points, and make sure managers know what record to keep before 1 January 2027.