George Cokkinos, Employment Law Solicitor, explains the difference between qualifying periods and probationary periods, the risks of confusing the two, and what employers can do to protect their business as these changes come into effect.
What’s the difference between a qualifying period and a probationary period?
A qualifying period relates to an employee’s right to bring certain employment claims, in this case, claims for unfair dismissal (including constructive dismissal). This will be changing from 1 January 2027, and employees will qualify for the right to bring dismissal-related claims once they reach six months’ continuous service, down from two years. In practice, employees who have six months’ continuous service on or after 1 January 2027 will generally have the right to bring an unfair dismissal claim.
A probationary period is a contractual arrangement used to give an employee and employer time to assess whether their employment relationship is the right fit. It may include, for example, a shorter notice period during probation. Importantly, a probationary period does not affect whether an employee has statutory employment rights. Equally, successful completion of a probationary period doesn’t determine whether an employee has the right to bring statutory employment claims.
Are there any risks in confusing the two?
As described above, the two concepts should be considered separately, as not all employment rights have a qualifying period. Some employment rights apply from day one, such as protection from discrimination, which has no qualifying period.
Employers should therefore not assume that dismissing an employee during their probationary period removes the need to follow an appropriate and fair process. A probationary period isn’t a substitute for complying with employment law obligations. Furthermore, it’s important to keep probationary periods under review and not allow them to drift. Employers shouldn’t assume that extending a probationary period or leaving it unresolved will prevent an employee from acquiring statutory employment rights. If concerns arise and it becomes clear that the employment relationship is unlikely to succeed, employers should take timely and appropriate action rather than allowing matters to continue without review.
What should employers do?
1. Be clear in the contract of employment
Clearly state the length of the probationary period, what happens when it concludes, and whether it can be extended. Employers should also consider whether the length of the probationary period remains appropriate in light of the changes to the qualifying period.
If the probationary period is six months or longer, an employer may still be able to rely on a statutory potentially fair reason for dismissal, provided the requirements for a fair dismissal are met and the correct process is followed.
2. Don’t treat the probationary period as legal protection
Employees still have other employment rights that need to be considered and many of those rights apply from day one of employment. A probationary period does not remove those rights.
3. Review performance early on
If there are concerns about performance, make them clear at an early stage and give the employee an opportunity to address them and improve.
4. Keep clear records
Maintain accurate records of performance concerns, meetings, objectives and decisions. This can be important if any decision to dismiss is challenged at a later date.
5. Take advice
If you’re unclear about an employee’s rights, seek advice on best practice before making a decision. While this may seem like something a solicitor would typically say, obtaining guidance at an early stage can often save significant time and cost compared with defending a claim or attempting to rectify procedural errors retrospectively.
This is particularly important in light of the proposed removal of the cap on compensatory awards, which is also due to take effect on 1 January 2027.
The changes to qualifying periods mean employers should review their recruitment, onboarding, probation and dismissal procedures now.
If you’d like advice on updating contracts, managing employee performance, or handling dismissals fairly and effectively, contact our employment law team on 03456 465 465 or email enquiries@rotherabray.co.uk
