How HR Leaders Can Manage Probation Periods Under the New Unfair Dismissal Rights

As part of the UK’s upcoming employment law reforms, protection from unfair dismissal will soon begin from day one of employment. 

At present, employees must have worked with their employer for two continuous years to bring a claim for unfair dismissal, except in cases of automatic unfair dismissal, such as whistleblowing and pregnancy. Essentially, this means probation periods will no longer offer the same legal buffer they once did.

Dismissing a new employee without a clear reason or paper trail could open the door to legal risk, even during the early weeks of employment. In this blog, we’ll break down what’s changing, what employers can and can’t do under the new rules, and how tools like RefNow support HR by maintaining accurate records and audit trails to help manage probation evaluations fairly and transparently.

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What’s Changing

Under the current UK employment law, most employees must complete two years of continuous service before gaining the right to claim unfair dismissal. That’s why many employers have relied on probation periods to assess new employees, knowing they could end the contract with minimal legal risk if things didn’t work out. But from 2027, as part of the Employment Rights Bill, day one protection from unfair dismissal will be introduced. 

This means that even employees in their probation period will be able to bring a claim if they believe they’ve been dismissed unfairly. For HR, this means informal probation practices, such as undocumented reviews or dismissals without a clear process, could now carry heavy legal consequences. In fact, research suggests this change will increase the already strained employment tribunals’ workload by 15%. Although, in reality, it is likely to be more than this.

It should be noted here that employers can still reject candidates before their start date because the new rights apply only once employment has begun.

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What Employers Can Do

In response to employer concerns that day one protection against unfair dismissal would compromise their ability to correct hiring mistakes, the government is introducing a statutory probation period.

During the new statutory probation period, employers will be able to dismiss employees for reasons including conduct, capability, statutory restriction, or some other substantial reason related to the employee, using a ‘lighter touch and less onerous process’.

While the details are still being finalised, it’s expected that this period will last between three and nine months, and the employer will likely need to hold a meeting with the employee to discuss their performance concerns before making a decision regarding dismissal.

The main difference to note here is that probation dismissals will no longer be ‘low risk’ because even during this lighter-touch phase, clear reasoning and documentation will still matter, particularly if an employee challenges the fairness of their dismissal.

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What Employers Can’t Do

Although probation periods will remain in place, the upcoming changes mean employers will need to be a lot more cautious in how they approach dismissals. Here’s a quick look at what employers can’t do under the new rules:

• Dismiss without reason or process - a vague or undocumented decision could be challenged as unfair, especially if it appears to be inconsistent or discriminatory.
  
• Ignore the need for documentation - even under a lighter touch approach, employers will still need to keep a record of performance issues, discussions held, and any steps taken before a dismissal. It’s incredibly important to remember that dismissals without evidence of issues will carry legal risk.
  
• Apply lighter-touch rules to redundancy - this approach will not apply to redundancy dismissals, meaning that the usual ‘fair’ process will need to be followed from day one for such dismissals.
  
  

How HR Can Manage Probation Periods Fairly

Considering the changes mentioned above, here are a few ways HR can improve their probation management:

• Set clear expectations by making sure new employees understand what’s expected during their probation period (such as goals, behaviours and timelines for review).
  
• Keep written records of any feedback given, meetings held, and support offered. If performance becomes a concern, remember to note down exactly what was discussed and when.
  
• Schedule regular probation reviews to discuss each new employee’s progress. If issues arise, give the employee a chance to respond and improve before making a final decision.
  
• Dismissals should never come as a surprise, so try to avoid making snap decisions. Fairness, transparency, and being given the opportunity to improve are key here.

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How RefNow Supports HR

RefNow supports HR teams to manage all of the above challenges by automating one of the most time-consuming stages of onboarding - reference checking. Our platform helps you build a consistent record of each candidate’s hiring journey, starting before their first day.

We provide a secure, efficient, and streamlined solution for reference checks that not only saves time but also significantly improves the integrity and safety of your hiring process. Using our platform, you’ll gain:

• A full audit trail of every reference request, response, and communication attempt, all securely stored and timestamped.
  
• Fast reference turnaround (usually under 36 hours), helping you make timely and informed hiring decisions.
  
• GDPR-compliant record keeping, reducing legal risk and supporting fair hiring.
  
• Fraud detection tools, including fake reference checks and ID verification, to ensure hiring decisions are based on accurate information.
  
• Centralised access to records, helping you justify your decisions and manage probation reviews with confidence.

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Final Thoughts

The introduction of day one unfair dismissal rights will undoubtedly bring some challenges for employers. Probation periods are still a valuable part of the hiring process, but they will soon carry more legal weight and require more structure and fairness than ever before.

By implementing simple steps, such as reviewing probation policies, training managers, and following stricter onboarding processes, HR leaders will be in a much stronger position by the time the new rules come into force in 2027. RefNow is here to support that transition by maintaining accurate records and audit trails to help HR teams manage probation evaluations fairly and transparently.