Probation periods after ERA 2025: what's different
Probationary periods occupy an odd position in UK employment law: they are widely used by employers and almost universally expected by new employees, but they have never been formally defined in statute. ERA 2025 does not create a statutory probationary period or "initial period of employment" — that proposal was abandoned before the Act passed, so probation remains a contractual concept. What ERA 2025 does change is what a probationary period means in practice, because it reduces the qualifying period for ordinary unfair dismissal from two years to six months for dismissals on or after 1 January 2027 (commencement is still pending).
At the moment, a new employee generally has no right to challenge an ordinary dismissal as unfair for the first two years, and that two-year period still applies today. This means a probationary dismissal — even one conducted poorly or based on insufficient evidence — currently carries limited legal risk for the employer. There is no day-one unfair dismissal right; that idea was dropped before Royal Assent. Once the qualifying period drops to six months in 2027, that low-risk window narrows considerably.
This does not mean probationary periods become pointless. They remain a sensible structure for assessing whether a new hire is the right fit. What changes is that, as the qualifying period shortens, the process followed during probation should be as procedurally sound as any other dismissal process — and following a fair process is good practice regardless. The ACAS Code of Practice on Disciplinary and Grievance Procedures applies regardless of length of service.
What does a compliant probationary process look like after ERA 2025? It should include: clear objectives communicated at the outset, regular check-in meetings at documented intervals, written records of any concerns raised and how they were discussed, an opportunity for the employee to respond to those concerns, support offered where performance falls short, and a formal review at the end of the probationary period.
A dismissal during probation will be fair if the employer had a genuine and reasonably held view that the employee was not meeting the required standard, communicated that view to the employee, gave the employee an opportunity to address it, and reached the dismissal decision after genuinely considering the employee's response. The burden of showing that process was followed falls on the employer.
Probationary periods should also be a defined length. A clause that says "the employee will serve a probationary period of six months, which may be extended at the employer's discretion" is reasonable. An indefinite probationary period — or one where the employee is never told when it ends — is not.
Extensions of probation require particular care. Extending probation without explanation, or using a series of extensions to delay a dismissal decision, creates a record that may look inconsistent or unfair to a tribunal. An extension should be accompanied by specific concerns, a clear timeline, and defined targets. If those targets are met, probation should end. If they are not, dismissal should follow — with a fair procedure.
See our guide on day one unfair dismissal rights for the legal context, and how to update your employment contracts for ERA 2025 for specific wording changes to probationary clauses.
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