Changes to qualifying period: Time to rethink probation periods?

In amongst the various changes the Employment Rights Act 2025 is introducing, the change in the qualifying period for protection against ordinary unfair dismissal claims is arguably the most significant. From 1 January 2027, the qualifying period is reducing from two years to six months.

This change is more imminent than the 2027 date first implies as the reality is that the new law will apply to all employees who have already accumulated at least six months of continuous employment by this date. Or in other words, anyone who has been employed on or before 1 July 2026, will hit (at least) six months of service by 1 January 2027 and will benefit from the new protections.

This means that now is the right time for employers to be reviewing their employment contracts and rethinking strategies on probationary periods.

As we all know, probationary periods are put in place for new starters to give an employer a reasonable amount of time to properly assess their suitability for the role. Traditionally, the common practice has been to have a six-month probationary period, with the option to extend this period, usually by a further three months or longer.

From 1 July 2026, probationary periods longer than six months ought to be redundant for new starters. If the employee has accrued the six months continuous employment by 1 January 2027, they will benefit from the new protections, regardless of the fact they may still be subject to a probationary period. That means instead of employers giving an underperforming employee a week’s notice (as the case may be) and letting them go, a full performance management procedure would need to be carried out before they could dismiss them, otherwise an employee would have the right to claim for unfair dismissal.

The logical way to combat this is to have shorter probationary periods set out in the contract of employment. Our recommendation would be to have probationary periods that last no longer than five months in total. The initial probationary period could last three or four months, and any option to extend would either be for one or two months (depending on the initial length of the probationary period). The purpose would be to give an employer enough time to make a decision on suitability, whilst also ensuring that they are not caught out by the new protections and ultimately retaining the flexibility to dismiss on much shorter notice if need be.

We also recommend that employers tighten their practices during the probationary period. Keeping records of review meetings that have taken place (as well as any targets or causes for concern that have been communicated in such meetings), will be crucial to demonstrate a fair procedure has taken place prior to any dismissal, if the argument arises. Employers have discretion to hold formal and informal meetings with an employee at any time. Given the reduced period of time employers will now have, this will be an efficient way of assessing whether someone is suited to the role.

Given the uncertainty that lies ahead, being prepared is the best way to stay ahead of the curve. If you wish to speak to a member of our Employment Team on how to tackle this, please contact Eleanor Disney (edisney@leathesprior.co.uk).