We’re all familiar with the scenario where it is month four of a new hire’s employment. Something is not quite clicking, but nobody has said anything yet, and the probation review keeps sliding down the to do list.
From 1 January 2027, that delay could cost your business a great deal more than it does today.
Probation periods are one of the most common features of working life, and one of the most misunderstood. Employers tend to treat them as a safety net or a tick box. Employees often assume they have no rights until they have “passed”. Neither is quite right, and the Employment Rights Act 2025 is about to make it all more important.
So what actually is a probation period?
A probation period is simply a settling-in window at the start of a job. It gives you time to see how someone performs and how they fit, and typically gives both parties a shorter notice period to dismiss if it isn’t working out. Just as importantly, it gives your new starter the chance to decide whether the role and the organisation are right for them.
Here is the part that surprises people: there is no legal requirement to have one at all, and no fixed length. Most run between three and six months, but it comes down entirely to what your contract of employment says.
The biggest myth: “I have no rights until I pass”
Not true. “Day one” rights apply from the very first shift, whether someone is on probation or not. That includes:
- The National Minimum Wage
- Paid holiday
- The right to join a trade union
- Statutory sick pay, if eligibility is met
Notice periods apply too. If someone resigns or is dismissed during probation, the statutory or contractual notice still has to be given. Our Notice Period Guide walks through the detail. One genuine difference: pension auto enrolment can be postponed for up to three months, although you must enrol someone sooner if they ask.
What is changing in January 2027?
The Employment Rights Act 2025 does not change probation periods themselves. What it changes is the risk sitting behind them.
From 1 January 2027, the qualifying period for ordinary unfair dismissal drops from two years to six months. Anyone with six months’ service on that date, which in practice means anyone employed on or before 1 July 2026, is protected straight away. The cap on unfair dismissal compensation is being removed as well, so the financial exposure rises sharply. We have unpacked what that means for employers in Is Your Organisation Ready for Unfair Dismissal Rights?.
Failure to pass probation is not a fair reason for dismissal; the six month qualifying period means more legally than internal probation management.
The five month trap
For years, the two year qualifying period acted as a buffer so that if there were any delays or complacencies around probation. That buffer is about to shrink dramatically, so decisions need to happen earlier and more deliberately.
One key point is that statutory minimum notice can push someone’s termination date forward by a week, which may carry them over the six-month threshold. Acting at month five and a half is not the safe bet it looks like.
The good news
None of this requires a legal overhaul. It mostly requires good management: clear expectations from day one, review points that actually happen, honest feedback that is documented and honest, and managers who feel confident having those conversations early. Our guidance on disciplinary and performance management is a good place to start.
Ready to get your probation process in shape?
Probation periods are not going anywhere. Relying on them as a get out clause, however, is no longer realistic. The businesses that review their contracts, policies and manager training during 2026 will find January 2027 straightforward rather than stressful.
That is where we come in. Get in touch with the Thrive team for a friendly conversation about your probation processes, or take a look at our outsourced HR and employment law support if you would like a people partner in your corner all year round.
Want more? Read From Compliance to Culture: Responding to Employment Law Changes, or browse the Thrive blog for more employment law, HR and wellbeing insights.
For more employment law tips and tricks, check out Jodie Hill’s Youtube Channel to see what’s going on with the thrive tribe, all things neurodiversity and how to keep your businesses thriving!.
Further reading: Acas guidance on probation periods | GOV.UK: unfair dismissal changes
